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ACC AM 6/27

Industry and Association News

State AGs Skewer 'Reckless' Senate Rule-Reform Bill
Jun 26, 2017 | E&E News PM
By Arianna Skibell

Eleven state attorneys general are urging the Senate to reject legislation that aims to amend the 1946 Administrative Procedure Act.
EPA Call for Advisory Panel Experts Worries Environmentalists
Jun 27, 2017 | BNA Daily Environment Report
By Catherine Douglas Moran

The EPA is seeking scientists to staff an air pollution advisory committee, but some environmental groups worry the Trump administration will replace members finishing their first term and give industry groups more say on scientific matters.
Pruitt's Ambitious Agenda Slowed by EPA Vacancies at the Top
Jun 26, 2017 | PoliticoPro
By Eric Wolff

EPA Administrator Scott Pruitt is relying on a skeleton crew of loyalists with little experience in environmental regulations, augmented by former industry lobbyists, as he pursues an ambitious agenda of seeking to undo the agency’s Obama-era rules.

LCSA News

(ACC Mentioned) Tensions Build as U.S. Chemical Law Turns One Year Old
Jun 26, 2017 | Chemical & Engineering News
By Britt E. Erickson

A year ago, U.S. chemical manufacturers and environmental advocates were celebrating the enactment of amendments to the Toxic Substances Control Act—the law that governs new and existing chemicals in the U.S. market.
(ACC Mentioned) NGOs, Democrats Decry 'Weakened' TSCA Framework Rules
Jun 27, 2017 | Chemical Watch
By Kelly Franklin

NGOs and Democratic lawmakers have criticised the US EPA’s final TSCA prioritisation and risk evaluation framework rules as "significantly weakened" since proposed, and say the industry-requested changes may undermine the new law’s effectiveness.
EPA Issues Final TSCA Framework Rules
Jun 26, 2017 | The National Law Review

The U.S. Environmental Protection Agency (EPA) released on June 22, 2017, the pre-publication Federal Register notices of the final framework actions under the Toxic Substances Control Act (TSCA), as revised by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (new TSCA).
The EPA Is Seeking Scientists to Staff an Air Pollution Advisory Committee, but Some Environmental Groups Worry the Trump Administration Will Replace Members Finishing Their First Term and Give Industry Groups More Say on Scientific Matters.
Jun 27, 2017 | Inside EPA

A group of 13 Democratic attorneys general (AGs) is urging senators to vote down a pending regulatory reform bill that would create a host of new requirements for EPA and other agencies seeking to write new rules, saying it would block any effort by the agency to ban asbestos...

Chemical Management News

Consultant: Expect More Questions on 'Chemicals of Concern'
Jun 26, 2017 | Plastics News
By Roger Renstrom

Processors may be facing more questions about details of their products by their customers in the near future, a consultant warned members at the Western Plastics Association's annual conference in Sonoma in May.
The 10 Most Contaminated Foods in Your Fridge You Need to Trash Right Now—and Healthier Alternatives
Jun 27, 2017 | AlterNet
By Annie B. Bond

As ubiquitous as chemical contamination is in our environment, we often don’t think about our food supply as carrying a high chemical load.
Monsanto Weed-Killer Roundup Causes Cancer, California Says
Jun 26, 2017 | Newsweek
By Douglas Main

The herbicide glyphosate, the main ingredient in Monsanto’s weed killer Roundup, will be classified by California as a carcinogen, “known to the state to cause cancer.”

Energy News

(ACC Mentioned) Is Louisiana Standing On The Sidelines While The Shale Revolution Happens?
Jun 27, 2017 | The Hayride
By Kevin Boyd

The fracking boom has changed America’s energy landscape for the better. It has made natural gas much cheaper than before.
Pruitt Faces Early Legal Tests Over Efforts To Delay Obama-Era EPA Rules
Jun 26, 2017 | Inside EPA
By Abby Smith and Dawn Reeves

EPA is using both the Clean Air Act and the Administrative Procedure Act (APA) to delay Obama-era regulations -- a tactic to buy time for the Trump administration to rewrite the rules -- but environmentalists' challenges to those stalling tactics could be first legal tests...
Three Suits Test Scope Of EPA Authority To Administratively Stay Rules
Jun 26, 2017 | Inside EPA

Three lawsuits in which environmentalists are challenging EPA administrative delays of Obama-era regulations are likely to provide the first legal tests of the agency's authority to stay its rules using administrative tools -- as EPA's use of the statutes has little...
Asserting 'Dominance,' Trump Seeks Boost for U.S. Energy Exports
Jun 26, 2017 | Reuters
By Roberta Rampton

President Donald Trump on Thursday will lay out his plan for reducing regulations to boost already-abundant U.S. production of oil, natural gas and coal and export it around the world, creating American jobs and helping allies.
White House Talks Energy as Health Care Vote Looms
Jun 26, 2017 | Politico
By Andrew Restuccia and Josh Dawsey

At the Capitol, senators are deciding the fate of President Donald Trump’s biggest policy priority: repealing Obamacare. But at the other end of Pennsylvania Avenue, it’s “Energy Week.”
Perry: Trump Wants to Use Energy for ‘Global Leadership’
Jun 27, 2017 | The Hill - E2 Wire
By Timothy Cama

President Trump wants the United States to use its energy as a geopolitical tool for influence and leadership, Energy Secretary Rick Perry said.
Trump’s Anti-Nafta Stance Is on a Collision Course with Natural Gas
Jun 26, 2017 | The New York Times
By Clifford Krauss and Azam Ahmed

Of all the industries thrown into question by President Trump’s promise to upend free trade with Mexico, natural gas is easily one of the most important.
Committee to Vote on 8 Bills
Jun 27, 2017 | E&E Daily
By Sam Mintz and Sean Reilly

The House Energy and Commerce Committee will look to advance eight bills tomorrow, including several significant pieces of legislation on nuclear waste, ozone standards, brownfields and pipeline permitting.

Chemical Security News - There are no clips to report at this time.

Transportation News - There are no clips to report at this time.

Environment News

EPA Seeks New Science Advisors, But Delay May Halt CASAC In Fall
Jun 26, 2017 | Inside EPA
By Maria Hegstad

EPA is poised to call for new experts to join two of its advisory committees, the Clean Air Scientific Advisory Committee (CASAC) and Science Advisory Board (SAB), though the nearly two-month delay in doing so may mean that CASAC...
High Court Declines To Hear Suits On EPA's SSM Policy, Gold King Spill
Jun 26, 2017 | Inside EPA
By Stuart Parker and David LaRoss

The Supreme Court has declined to hear an industry suit seeking to overturn an Obama administration policy that emissions limits apply even in cases of malfunctions as it applied to a boiler air toxics rule, leaving industry groups and the agency to now reconsider the broader issue...
Here's the Real Problem with Trying to Tax Our Way Out of the Climate Crisis
Jun 27, 2017 | CNBC
By Terry Tamminen

Fool's gold glitters as brightly as the real thing, but a lot of valuable time and money can be wasted figuring out the difference.

Industry and Association News

State AGs Skewer 'Reckless' Senate Rule-Reform Bill

Jun 26, 2017 | E&E News PM

By Arianna Skibell

Eleven state attorneys general are urging the Senate to reject legislation that aims to amend the 1946 Administrative Procedure Act.
In a letter to Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Chuck Schumer (D-N.Y.), the attorneys general decry the "Regulatory Accountability Act," S. 951, saying it would jeopardize public health and safety.
Under the guise of "modernizing" the federal regulatory process, they wrote, the bill would bring all rulemaking to a "grinding halt."
"Nor does the RAA advance the laudable goal of promoting effective regulation," they added, "Instead, it surrenders agency authority to deep-pocketed special interests, adds needless, unworkable, and costly steps to an already extensive regulatory process, and opens up multiple new doors to endless litigation."
The bill, introduced by Sens. Rob Portman (R-Ohio) and Heidi Heitkamp (D-N.D.), would direct agencies to find the most "cost-effective" regulatory option and make law the common practice of conducting cost-benefit analyses (E&E Daily, May 17).
It would also invite early participation by regulated entities. And it would build in a review process for new rules and allow for agency hearings on the costliest actions, among other provisions.
The Senate Homeland Security and Governmental Affairs Committee voted 9-5 to advance the legislation last month, with Heitkamp the lone Democrat to vote in favor of the measure (Greenwire, May 17).
The bill is not yet scheduled for a full Senate vote, a committee aide said.
New York Attorney General Eric Schneiderman (D) spearheaded the letter, which was signed by the attorneys general of California, Delaware, Iowa, Maine, Maryland, Massachusetts, Oregon, Rhode Island, Vermont, Washington and the District of Columbia.
The bill's "ill-conceived and reckless provisions," they wrote, would "bollix, stymie, and derail the implementation of popular and necessary laws."
They take issue with provisions that would subject so-called high-impact rules to full hearings, which they said would be lengthy and burdensome; require proposed rules to undergo cost-effectiveness analysis that they said will prevent agencies from advancing their missions; and give the Office of Information and Regulatory Affairs (OIRA) and agencies unreviewable discretion to determine whether a rule is "high-impact" or "major."
"All of these provisions would introduce unnecessary, unwieldy, and costly impediments into federal rulemaking that would dramatically increase the time necessary to put public safeguards in place, exclude the public from the rulemaking process, and lead to avoidable and prolonged litigation that favors deep-pocketed special interests," they wrote.
Companies, business groups and other regulated interests, on the other hand, say the measure is a common-sense reform that would give stakeholders more input in the regulatory process, reduce litigation on the back end and save unnecessary costs.
https://www.eenews.net/eenewspm/2017/06/26/stories/1060056600

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EPA Call for Advisory Panel Experts Worries Environmentalists

Jun 27, 2017 | BNA Daily Environment Report

By Catherine Douglas Moran

The EPA is seeking scientists to staff an air pollution advisory committee, but some environmental groups worry the Trump administration will replace members finishing their first term and give industry groups more say on scientific matters.
The agency asks for nominations for scientific experts for the Environmental Protection Agency's Clean Air Scientific Advisory Committee, Science Advisory Board, and six out of seven SAB committees, according to a notice to be published in the Federal Register June 27. Members of the advisory board and clean air committee include non-EPA scientists, engineers, and economists who are appointed by the EPA administrator for three-year terms, which can be renewed for another three years.
The call comes after a shakeup in membership for the Board of Scientific Counselors in May where the agency said that it would not renew current members for a second term as it has historically.
George Allen, a former member of the clean air committee who finished his six years last fall, told Bloomberg BNA that members ending their first terms—who historically are reappointed—do not have the security of reappointment, similar to what happened with members for the Board of Scientific Counselors last month.
“It's clearly not business as usual,” Allen said.
EPA Administrator Scott Pruitt expressed a desire to alter the makeup of the EPA's independent science panels during his January confirmation hearing. Pruitt highlighted “conflicts of interest” on the clean air committee that he said need to be addressed and pledged to have more balanced geographical representation on EPA's advisory committees, echoing common critiques of the panels raised by critics of Obama-era environmental regulations.
The EPA didn't immediately respond to questions, but a spokesman told Bloomberg BNA the agency would respond on June 27.
Concern About Balance
Allen, a senior scientist for Northeast States for Coordinated Air Use Management, said that one spot on the clean air committee is open because the chair will soon finish serving her two terms. He said that the current clean air committee's membership consists of one industry representative, one state representative, and five academics.
“I know there has been concern about balance of academic versus industry,” Allen said. “I'm not sure if it's so much academic versus industry. Do they have the experience and the knowledge?”
Andrew Rosenberg, director for the Center for Science and Democracy at the Union of Concerned Scientists, told Bloomberg BNA that if the agency appoints members with industry ties, those members will either have to recuse themselves from discussions that would affect their businesses or the agency would weaken the conflict of interests so they wouldn't have to recuse themselves.
“The agency wants more industry-based committee membership, which risks politicizing advisory boards that are supposed to be independent,” Rosenberg said.
The SAB Staff Office seeks experts for SAB who are knowledgeable in areas such as air and water quality, agricultural and atmospheric sciences, and energy, and how they relate to human health and the environment. For the clean air committee, the office asks for physicians and members of the National Academy of Sciences with experience in air pollution's health effects.
Nominations are open for up to 30 days after it is published.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=115002977&vname=dennotallissues&fn=115002977&jd=115002977

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Pruitt's Ambitious Agenda Slowed by EPA Vacancies at the Top

Jun 26, 2017 | PoliticoPro

By Eric Wolff

EPA Administrator Scott Pruitt is relying on a skeleton crew of loyalists with little experience in environmental regulations, augmented by former industry lobbyists, as he pursues an ambitious agenda of seeking to undo the agency’s Obama-era rules.
Both supporters and opponents question whether the team he’s assembled is up to the task.
President Donald Trump has been slow to appoint the assistant and deputy administrators who traditionally run the agency, leaving Pruitt to rely on longtime advisers and political allies to guide the career EPA employees temporarily filling those leadership roles, according to an internal list of senior officials obtained by POLITICO.
Pruitt has brought along several aides from his stint as Oklahoma attorney general, when he sued EPA more than a dozen times to overturn Obama-era rules, as well as former employees of the Republican Attorneys General Association, which collected millions of dollars from fossil fuel interests when Pruitt was its chairman. He also is leaning heavily on veterans from the staff of Sen. Jim Inhofe (R-Okla.) and industry groups such as the American Chemistry Council.
The background of Pruitt's advisers stands in sharp contrast to the staff surrounding Lisa Jackson, the first EPA administrator for former President Barack Obama, and illustrates the consequences of Trump's historically slow pace filling out his administration.
Five months into Obama's first term, Jackson had a deputy, a complete roster of assistant administrators, and a general counsel, most of whom were drawn from the ranks of state regulators. They included Peter Silva, who ran the Office of Water and held senior roles in the Metropolitan Water District in California; Cynthia Giles, who ran the enforcement office had been an enforcer in Massachusetts; and Gina McCarthy, later the agency's chief and who had been a state regulator in Massachusetts and Connecticut before taking over the air office. Former President George W. Bush selected assistant administrators with past EPA experience or past White House experience on these issues.
Pruitt's hires have prompted grumbling among EPA employees — several of whom raised concerns internally about the policy changes pushed by a former top ACC official over the agency's work to implement a landmark chemical safety law. And it highlights the mistrust between the Trump administration and the tens of thousands of bureaucrats who staff the federal government and have been derided as the "deep state" by some of Trump's conservative advisers.
Furthermore, without the legal authority that comes with having Senate-confirmed officials carrying out his agenda, both allies and opponents say that Pruitt will struggle to implement the rollback of Obama-era rules he views as overly burdensome on industries like coal mining or chemical production. EPA sources and outside advocates who work with the agency say the political appointees generally do not trust the civil servants to do the work asked of them.
“If you are Pruitt, you have a handful of folks around you that you trust and have confidence in," said Stephen Brown, top lobbyist for oil refiner Tesoro. "You head an agency of 15,000, many of whom can be described as 'the resistance.' What would anyone do except hunker down and deal only with those you trust?”
Sources inside the agency say that Pruitt's team of senior advisers have been cordial to senior staff and have avoided usurping the management role of the civil servants now occupying the acting assistant administrator roles while they wait for Trump to nominate senior officials. EPA did not respond to repeated requests for comment.
Environmentalists see more evidence of an uncomfortably cozy relationship between Pruitt and the industries he is supposed to be policing — and that Trump is falling short on his pledge to "drain the swamp" in Washington.
"They don’t seem to know the field, they don’t know the history, they don’t know the laws. They seem to be picked for being politically loyal and connected to his patrons," said David Doniger, director of the climate and clean air program for the Natural Resources Defense Council.
Pruitt is the only Senate-confirmed official working at EPA today, and Trump has so far named just one other person to join him: Susan Bodine, an alum of Inhofe's Environment and Public Works Committee, whose nomination to become assistant administrator for the Office of Enforcement and Compliance Assurance is moving through the Senate confirmation process. Pruitt has yet to get a second-in-command months after coal lobbyist Andrew Wheeler emerged as the likely pick, and the White House is now evaluating at least two other candidates for the deputy administrator post.
In lieu of nominees from the White House, Pruitt has installed a set of senior advisers in the Office of Policy and deputies in other offices to represent his views to civil servants. They include familiar faces from Pruitt's time in Oklahoma, such as Ken Wagner, his longtime friend and former law partner who is now an adviser for state and regional affairs, and Sarah Greenwalt, who launched her legal career under Pruitt when he was attorney general and is now a senior adviser interacting with the water office. Albert Kelly, a banker from the Sooner State who made campaign donations to Pruitt and Trump, is chair of a Superfund task force.
Alongside these loyalists, Pruitt has selected staff with deep industry ties. Nancy Beck joined EPA from the American Chemistry Council, where she pushed for limits on the scope of EPA's chemical reviews under the Toxic Substances Control Act. She is now deputy assistant administrator overseeing chemical safety, and has come under fire for securing business-friendly changes to EPA's proposed rules under the law, which Congress updated last year for the first time in decades.
Others joining EPA from the private sector include Patrick Traylor, now deputy assistant administrator for enforcement, who formerly worked as a lawyer at Hogan Lovells, working on permitting issues for Koch Companies subsidiaries and helped BHP Billiton permit a coal mine in Navajo Nation. Patrick Davis, a former Trump campaign official, started as a senior adviser for the land office and is now a deputy assistant administrator.
Pruitt also drew heavily from former aides to Inhofe, Oklahoma's senior Republican senator and his longtime booster.
Ryan Jackson, who was chief of staff to Inhofe when he chaired the Environment and Public Works Committee, now holds that title under Pruitt. Jackson has functioned as gatekeeper, but in the absence of a deputy administrator he has taken on an elevated role. For example, Pruitt recused himself from participating in lawsuits against the agency he participated in as AG, including those challenging the Clean Power Plan and Waters of the U.S. rule, and delegated responsibility to Jackson to oversee those cases.
Jackson has no shortage of familiar faces around him. Pruitt has hired former Inhofe aides Brittany Bolen and Byron Brown to take senior roles in the Office of Policy, and Mandy Gunasekara as a senior adviser working with the Office of Air and Radiation.
Samantha Dravis came to EPA after working with Pruitt at the Republican Attorneys General Association and Rule of Law Defense Fund, and after a stint at the Koch-backed Freedom Partners. The RLDF was the subject of a Pulitzer-winning series from The New York Times showing a tight alliance between it andoil companies like Devon Energy.
Dravis's role as associate administrator for policy, which does not require Senate confirmation, would be influential in most administrations, since among the job's responsibilities is handling the interagency review and coordination with the Office of Information and Regulatory Affairs. But without a group of politically appointed assistant administrators running offices, she is also responsible for much of the policy making.
"In the current environment, when you don’t have assistant administrators in all of these offices, it often falls to the current associate administrator for policy to provide input on all the policy decisions to be made," said a source outside the agency who has spoken with Office of Policy staff. "She has brought on a number of fairly junior people that are effectively serving as shadow assistant administrators within that office to advise Scott Pruitt on different things. It’s a very unusual state they find themselves at this point in the administration to not have people running those offices."
EPA employees credit advisers like Gunasekara and Greenwalt with asking a lot of questions while "drinking from the fire hose," a phrase multiple sources used to describe life in Pruitt's Office of Policy. Greenwalt has been tasked with withdrawing and rewriting the Waters of the U.S. rule, and Gunasekara is working with the office within the agency tasked with withdrawing the Clean Power Plan and releasing a rule on the Renewable Fuel Standard. Greenwalt represented Oklahoma alongside Pruitt in challenging WOTUS before a federal judge.
Pruitt is slated to get some experienced help soon. In addition to Bodine, he recently hired Henry Darwin, who once ran the Arizona Department of Environmental Quality, to be his assistant deputy administrator, a newly created position that does not require Senate confirmation and will effectively allow him to serve as EPA's chief operations officer.
"They are so thinly staffed over there, the political team, it’s a fire drill every day," said an industry advocate who still works with the agency. "They don’t have time to build political relationships. ... It’s an extraordinary disadvantage."
https://www.politicopro.com/energy/story/2017/06/pruitts-ambitious-agenda-slowed-by-epa-vacancies-at-the-top-158441

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LCSA News

(ACC Mentioned) Tensions Build as U.S. Chemical Law Turns One Year Old

Jun 26, 2017 | Chemical & Engineering News

By Britt E. Erickson

A year ago, U.S. chemical manufacturers and environmental advocates were celebrating the enactment of amendments to the Toxic Substances Control Act—the law that governs new and existing chemicals in the U.S. market. They had high expectations that the changes would help boost consumer confidence in the safety of chemicals sold in the U.S.
But one year later, the chemical industry and environmental advocates are at odds . . .
...This option is the only one from EPA that achieves the requirements of the law, says Christina Franz, senior director of regulatory and technical affairs at the American Chemistry Council, an industry group representing chemical manufacturers...
Subscription required, for full story: http://pubs.acs.org/iapps/wld/cen/results.html;jsessionid=HiXAwd4XzMXORHrAfOuWrpHN?currentPage=1&field1=author&field2=title&field3=article&line1=&line2=&line3=%22American%2BChemistry+Council%22&bool2=AND&bool3=AND&resultsPerPage=10&sortBy=date&refine=&startMonth=8&startYear=1998&endMonth=6&endYear=2017

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(ACC Mentioned) NGOs, Democrats Decry 'Weakened' TSCA Framework Rules

Jun 27, 2017 | Chemical Watch

By Kelly Franklin

NGOs and Democratic lawmakers have criticised the US EPA’s final TSCA prioritisation and risk evaluation framework rules as "significantly weakened" since proposed, and say the industry-requested changes may undermine the new law’s effectiveness.
Liz Hitchcock, government affairs director at Safer Chemicals, Healthy Families, said the NGO is "profoundly disappointed that the [final rules] depart dramatically from EPA’s original proposal, following the wishes of the chemical lobby".
Environmental Defense Fund lead senior scientist Richard Denison - who was deeply involved in the efforts to draft the updated TSCA - said the changes "significantly weaken the proposed rules, in some cases in ways that are contrary to the new law" and "heighten our concern that it will not be implemented in the coming years in a way that protects the public’s health".
Frank Pallone, Jr (D–New Jersey), House Energy and Commerce ranking member, called the rules "an apparent handout to industry".
And Paul Tonko (D–New York), Environment Subcommittee ranking member, said the committee should hold oversight hearings on implementation.
"We deserve a deeper review as to whether the law is being implemented as Congress intended and whether the American people are receiving the protection from toxic chemicals that they were promised," Mr Tonko said.
Mr Pallone’s criticism follows a letter to the EPA Administrator on the eve of the law’s anniversary, questioning whether deputy assistant administrator Nancy Beck – formerly of the American Chemistry Council (ACC) – was "inappropriately involved in finalising rules" that will impact her former employer – a conflict of interest which he says threatens the success of the law.
And according to Jennifer Sass, NRDC, this threat "has become a reality". She says the final rules "have been extensively tampered with, outside of the public view, by the Trump-Pruitt EPA with Nancy Beck at the helm of the agency’s toxics programme".
But Amy Graham, an EPA spokesperson, said that arguments against Dr Beck's work "are a disservice to the career EPA staff who worked hard to draft the TSCA rules".
"Nancy Beck is an experienced scientist with a long record of public service in the Clinton, Bush and Obama administrations. Dr Beck takes her ethics responsibilities seriously; she has had an ethics briefing and is committed to serving in a fair and professional way," she added.
Conditions of use
Critics are most concerned about the agency’s revised approach to conditions of use.
In its proposal, the EPA had said it would evaluate all of them when assessing a chemical. But the final rule says the agency will instead "identify ‘circumstances’ that constitute the conditions of use for each chemical substance on a case-by-case basis".
The rule names "certain activities that may generally not be considered". These include unsubstantiated or anecdotal statements on a chemical’s alternate purpose, intentional misuse, and legacy uses and their associated disposal.
The EPA says it may, on a case-by-case basis, also exclude some activities "in order to focus its analytical efforts on those exposures that are likely to present the greatest concern". These may include uses that would present only de minimis exposures – such as in a closed system or use as an intermediate – or that has been "adequately assessed" by another regulatory agency.
The Environmental Working Group said the changed approach "means the agency could ignore potentially dangerous uses – including legacy contamination – and would not have an accurate picture of Americans’ likely exposure to a chemical".
Dr Denison added that the agency "provides no explanation as to how these use exclusions will be determined".
He also highlighted language that allows it to make risk determinations for individual conditions of use, and staggering them – something he says is not supported by the statute.
"A determination that a chemical does not present unreasonable risk is to be made on the chemical as a whole, not individual uses. EPA’s approach complicates and undermines the clear intent of Congress that EPA examine the full range of exposures to a chemical," he said.
Pre-prioritisation, other concerns
Other provisions, NGOs have expressed concern over, include:
·         removing the pre-prioritisation step, and instead developing what Dr Denison said "is likely to be an unnecessarily prescriptive process that may limit EPA’s ability to use its information-gathering authorities and be burdensome to the agency";
·         getting rid of the default to a high priority designation where information is insufficient and instead allowing for designation as a low priority, after what the EWG calls a ‘cursory review’ by the EPA;
·         "constraints" on the agency’s ability to gather information;
·         potential loopholes in the inventory reset reporting that may allow companies to assert new confidential business information (CBI) claims;and
·         allowing manufacturer-requested risk evaluations to be limited in scope to specific conditions of use.
The removal of the pre-prioritisation step did win praise from People for the Ethical Treatment of Animals, however. The NGO had raised concerns that the step would "enable the agency to require tests that cause intense suffering to large numbers of animals, without prior notice or opportunity for public comment".

It also welcomed the agency’s tiered testing approach and its commitment to public input in the process for identifying candidates for prioritisation.
https://chemicalwatch.com/57196/ngos-democrats-decry-weakened-tsca-framework-rules

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EPA Issues Final TSCA Framework Rules

Jun 26, 2017 | The National Law Review

The U.S. Environmental Protection Agency (EPA) released on June 22, 2017, the pre-publication Federal Register notices of the final framework actions under the Toxic Substances Control Act (TSCA), as revised by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (new TSCA). The final rules include the prioritization process rule, which establishes EPA’s process and criteria for identifying High-Priority chemicals for risk evaluation and Low-Priority chemicals for which risk evaluation is not warranted at this time; the risk evaluation process rule, which establishes EPA’s process for evaluating High-Priority chemicals to determine whether or not they present an unreasonable risk to health or the environment; and the TSCA Inventory active-inactive rule, which requires industry to report chemicals manufactured, imported, or processed in the U.S. over the past ten years. EPA also published pre-publication notices concerning the scopes of the risk evaluations to be conducted for the first ten chemical substances under new TSCA and a guidance document to assist interested persons in developing and submitting draft risk evaluations.
This memorandum reflects our summary and analysis of the three framework rules. On the whole, the final rules improve upon the proposed rules, adding clarity and specificity where needed, and eliminating provisions and or preamble text that, in our view, enhance the clarity of the rules. Not everyone will be happy, however, as the rules reconsider, revise, and in some instances retreat from positions taken in the proposed rules issued under the Obama Administration. Our analysis identifies these changes.Final Prioritization Process Rule
The final prioritization process rule establishes the process and criteria for identifying High-Priority chemicals for risk evaluation and Low-Priority chemicals for which risk evaluation is not warranted at this time. The final rule describes the processes for formally initiating the prioritization process on a selected candidate, providing opportunities for public comment, screening the candidate against certain criteria, and proposing and preparing in final priority designations. EPA notes that prioritization is the initial step in a new process of existing chemical substance review and risk management activity established under new TSCA.
EPA states that the final rule incorporates all of the elements required by statute, some additional criteria EPA expects to consider, clarifications for greater transparency, and additional procedural steps to ensure effective implementation. In response to public comments on the January 17, 2017, proposed rule, EPA is, among other actions: (1) deferring action on the proposed pre-prioritization provisions, and committing to a prompt public stakeholder process to obtain further public comment (perhaps as early as the Fall of 2017) on best practices for pre-prioritization activities before taking the appropriate next step; (2) adding direct references in the final regulation to acknowledge EPA’s commitment to implementing the best available science and weight of the scientific evidence provisions in TSCA Sections 26(h) and (i), respectively; (3) adding provisions to clarify the limited meaning of a priority designation; and (4) committing EPA to clear and effective communication throughout the process.
The notice includes an in-depth discussion of the provisions of the final rule, public comments received on the proposed rule, and revisions EPA made in response to comments. EPA states that it prepared a separate document that summarizes all comments submitted on the proposed rule and its response to those comments, and that it will be available in the docket for this rulemaking. EPA’s web page on the prioritization process includes the following graphic that provides an overview of the process:
The final rule will be effective 60 days after publication in the Federal Register. EPA states that it intends that the provisions of this rule be severable. In the event that any individual provision or part of the rule is invalidated, EPA intends that this would not render the entire rule invalid, and that any individual provisions that can continue to operate will be left in place.Policy Objective
The prioritization process serves to help EPA identify priorities for further risk evaluation, to ensure that those priorities are grounded in risk-based considerations, and to provide the public and interested stakeholders with notice and an opportunity to engage with EPA and provide relevant information prior to the start of the risk evaluation process on a particular chemical. As a general matter, according to EPA, the primary objective of the process should be to guide EPA towards identifying the High-Priority Substances that have the greatest hazard and exposure potential first. The prioritization process is not intended to be an exact scoring or ranking exercise, and EPA is not adopting such a system. EPA states that it intends to conserve its resources and “deeper analytic efforts” for the actual risk evaluation. As a policy matter, EPA is committed to making Low-Priority designations on an ongoing basis beyond the statutory minimum. EPA also states that eventually, all TSCA Work Plan chemicals will be prioritized.Scope of Designations
Consistent with the proposed rule, EPA will designate the priority of a “chemical substance” as a whole, and will not limit its designation to a specific use or subset of uses of a chemical substance. EPA will consider those activities that the Administrator determines fall within the definition of “conditions of use” during prioritization. When publishing proposed and final priority designations, EPA expects to identify the information, analysis, and basis used to support the designations, as well as the specific condition(s) of use that were the basis for a High- or Low-Priority designation. EPA states that a chemical substance can be designated as a Low-Priority only if the “conditions of use” do not meet the standard for High-Priority designation.Timeframe
TSCA Section 6(b)(1)(C) requires that the prioritization process be completed in no fewer than nine months and no greater than 12 months. Accordingly, the final rule specifies that the process, from initiation to final designation, shall last between nine and 12 months.Categories of Chemical Substances
EPA included in the final rule several provisions from the proposal with respect to categories of chemical substances, without revision. EPA included, as proposed, a statement in the regulation that nothing in the subpart shall be construed as a limitation on EPA’s authority to take action with respect to categories of chemical substances. EPA is not adopting a regulatory definition of a “category of chemical substances,” as the term is defined in TSCA Section 26 (c)(2)(A). Should EPA determine to prioritize a category of chemical substances, however, EPA would describe the basis for such a determination in the Federal Register notice published to initiate prioritization.Metals and Metal Compounds
New TSCA mandates use of the March 2007 “Framework for Metals Risk Assessment” (Metals Framework) to account for the unique attributes of metals and metal compounds. In the final rule, EPA states that it fully recognizes the special attributes and behaviors of metals and metal compounds, and the mandate to use the Metals Framework. Importantly, EPA revised the final rule to strike certain proposed text such as “as appropriate” and “relevant considerations” to “avoid confusion” about EPA’s intention to apply the Metals Framework as directed by Congress. In this context, EPA states that it interprets the Metals Framework provision in TSCA “to require EPA to take into account the special attributes and behaviors of metals and metal compounds as described in the [Metals] Framework document” while noting that TSCA does not contemplate completion of a full risk assessment during the prioritization stage. Interests in the metals and metal compounds community will no doubt welcome the clarity of this statement, and the elimination of terms like “as appropriate,” which introduced considerable uncertainty and speculation.Chemicals Subject to Prioritization
EPA states that it is adopting these provisions from the proposed rule without revision. EPA chose not to exclude certain groups of chemicals altogether, such as new chemicals recently reviewed under TSCA Section 5 and inactive chemicals. EPA states that it expects that new chemicals are unlikely to be selected as early High-Priority candidates in light of the risk-related determination that EPA must make pursuant to new TSCA Section 5(a)(3). Although nothing in new TSCA prohibits EPA from initiating the prioritization process on an “inactive” chemical, EPA notes that whether a chemical substance is actively manufactured would generally be relevant to informing EPA’s exposure judgments during the prioritization process, and such chemicals may be less likely to be selected as early High-Priority candidates.Section 26 Scientific Standards
According to EPA, as a matter of practice, it has been, and will continue to be, “committed to basing its decisions on the best available science and the weight of the scientific evidence.” In response to public comments on the proposed rule, EPA made a number of additions to the final rule to ensure that the science standards in TSCA are more explicitly incorporated into the prioritization process. According to EPA, these changes clarify that EPA’s proposed and final designations for both High- and Low-Priority Substances will be consistent with TSCA’s new requirements in Section 26 related to best available science and weight of the scientific evidence.Definitions
The final rule incorporates the following key definitions, the first four of which are taken directly from the law:
High-Priority Substance: A chemical substance that EPA determines, without consideration of costs or other non-risk factors, may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use, including an unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant by EPA;
Low-Priority Substance: A chemical substance that EPA concludes, based on information sufficient to establish, without consideration of costs or other non-risk factors, does not meet the standard for a High-Priority Substance;
Conditions of Use: The circumstances, as determined by the EPA Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of;
Potentially Exposed or Susceptible Subpopulation: A group of individuals within the general population identified by the EPA Administrator who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly; and
Reasonably Available Information: Information that EPA possesses or can reasonably generate, obtain, and synthesize for use, considering the deadlines specified in TSCA Section 6(b) for prioritization and risk evaluation. Reasonably available information includes information in EPA’s possession that is confidential business information (CBI). In some instances, information that can be obtained through testing is “reasonably available.”Pre-Prioritization Considerations
According to the notice, the details of implementing pre-prioritization activities were the subject of “widely differing, and often irreconcilable views by commenters.” EPA states that it does not believe it would be appropriate to adopt a final pre-prioritization process without further discussions with interested stakeholders. As such, EPA deferred a final decision on the proposed pre-prioritization provisions as part of this rule, and the final rule at this time promulgates only the prioritization process required under new TSCA. EPA intends to initiate an additional stakeholder process, perhaps by the Fall of 2017, to include an additional public comment opportunity addressing pre-prioritization activities and to proceed as outlined earlier.Information Availability
The notice states that, as a general practice, EPA intends to resolve any concerns it may have about the sufficiency of information concerning a given chemical substance for purposes of prioritization before subjecting that chemical substance to the prioritization process. EPA deleted several references to ensuring sufficient information for purposes of risk evaluation at the prioritization stage. EPA states that it did not intend to suggest that it will routinely use its information gathering authorities for a particular chemical without first evaluating the available information to determine whether this is necessary. EPA revised the final rule to indicate that it generally expects to use a tiered approach to information gathering. As a general matter, this first tier involves a review of existing literature and available information by EPA to determine data needs.Candidate Selection
New TSCA requires that EPA give preference to chemical substances listed in the 2014 update of the TSCA Work Plan for Chemical Assessments that are persistent and bioaccumulative; known human carcinogens; and/or highly toxic. New TSCA Section 6(b)(2)(B) further requires that 50 percent of all ongoing risk evaluations be drawn from the 2014 update to the TSCA Work Plan for Chemical Assessments, meaning that EPA will need to draw at least 50 percent of High-Priority Substance candidates from the same list. In practice, according to the notice, EPA expects to select for High-Priority Substances those chemicals with the greatest hazard and exposure potential first. EPA will seek to identify candidates for Low-Priority designation where the information on hazard and exposure under the conditions of use for the chemical substance is sufficient to establish that a risk evaluation is not warranted to determine whether the chemical substance presents an unreasonable risk of injury to health or the environment, including an unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant by EPA.Initiation of Prioritization
EPA states that the prioritization process officially begins, for purposes of triggering the nine- to 12-month statutory timeframe, when EPA publishes a notice in the Federal Register identifying a chemical substance for prioritization. The final rule includes a new provision clarifying that EPA generally expects to provide an explanation in this notice for why it chose to initiate the process for the particular chemical substance (e.g., whether EPA views this as a potential candidate for High- or Low-Priority). Publication of the notice in the Federal Register also initiates a 90-day public comment period. Although the proposed rule specified that EPA would publish the results of the screening review in this same notice, EPA’s final rule shifts the timing of the screening review, which will now occur after the close of the initial 90-day public comment period.Screening Review
Following completion of the initial 90-day public comment period, EPA will screen the selected candidate against the specific criteria and considerations in TSCA Section 6(b)(1)(A): (1) the chemical substance’s hazard and exposure potential; (2) the chemical substance’s persistence and bioaccumulation; (3) potentially exposed or susceptible subpopulations; (4) storage of the chemical substance near significant sources of drinking water; (5) the chemical substance’s conditions of use or significant changes in conditions of use; and (6) the chemical substance’s production volume or significant changes in production volume. The final rule adds an additional criterion that appeared in the proposal: (7) other risk-based criteria that EPA determines to be relevant to the designation of the chemical substance’s priority.Proposed Designation
EPA will propose to designate a chemical substance as either a High-Priority Substance or Low-Priority Substance. In making the proposed designation, EPA will not consider costs or other non-risk factors. Under the proposed rule, in the event of insufficient information at this step, EPA would propose a default designation of a High-Priority Substance. EPA states that it has largely stricken this provision from the final rule. According to EPA, EPA believes it is charged by new TSCA, and will be able, to determine which of these priority categories each chemical falls into during the prioritization process, and therefore it is not necessary or appropriate to establish a default. This change is almost certain to cause controversy. At the same time, the rule states, consistent with Section 6(b)(1)(C)(iii), that if information is insufficient to designate a chemical as a Low-Priority at the end of the prioritization process, it will be designated as a High-Priority Substance.Final Priority Designation
The final rule includes additional regulatory text clarifying that EPA would publish an identification of information, analysis, and basis used to support the final designation, as required under new TSCA. Additionally, EPA amended the proposed rule to provide that EPA generally expects to identify which condition(s) of use were the primary bases for the priority designation. According to the notice, EPA made this revision in response to concerns that a priority designation for a chemical substance “could send strong signals to the public regarding potential risks.”Repopulation of High-Priority Substances
Under new TSCA, EPA must issue a final designation for at least one new High-Priority Substance upon completion of a risk evaluation for another chemical substance, except in the case of a risk evaluation requested by a manufacturer. According to the notice, in the Federal Register notice announcing the final designation of a new High-Priority Substance, EPA generally expects to identify the complete or near-complete risk evaluation that the new High-Priority Substance will replace.Effect of Final Priority Designation
Final designation of a chemical substance as a High-Priority Substance requires EPA to begin immediately a risk evaluation on that chemical substance, while final designation of a chemical substance as a Low-Priority Substance is a final agency action that means that a risk evaluation of the chemical substance is not warranted at the time. A Low-Priority Substance designation is explicitly subject to judicial review. According to EPA, because a High-Priority Substance designation is not a final agency action, it is not subject to judicial review. A High-Priority Substance designation prompts the initiation of a risk evaluation. Upon the conclusion of such a risk evaluation, EPA may determine that a chemical substance does not present an unreasonable risk of injury to human health or the environment under the conditions of use. Such a determination must be issued in an order, and is a final agency action subject to judicial review. If, conversely, EPA determines that a chemical substance presents an unreasonable risk of injury to human health or the environment under the conditions of use, that determination is not a final agency action and is not subject to judicial review. New TSCA mandates that EPA must issue a rule to manage the risk of the chemical substance or mixture so that it no longer presents the unreasonable risk. Such a final rule is a final agency action and is subject to judicial review.Revision of Designation
New TSCA allows EPA to revise a final designation of a chemical substance from a Low-Priority Substance to a High-Priority Substance at any time based on information that is reasonably available to EPA. The final rule outlines the process EPA will take to revise such a designation. New TSCA does not require a process for revising a High-Priority Substance to a Low-Priority, and the final rule does not provide a process for such a revision. Once EPA identifies a chemical as a High-Priority Substance, the risk evaluation process begins. EPA states its belief that Congress intended EPA to complete the risk evaluation process and, if warranted, make a finding that a substance does not pose an unreasonable risk, not to revise a priority designation.Commentary on Prioritization Rule
The final rule is clearly written and attempts to explain EPA’s thinking regarding the approaches reflected in the final rule. In many respects, where the proposal sought to go beyond the particulars contained in the law at several points, the final rule hews closely to the statutory language and retreats from positions that went further. As believers in the rule of law, and given the newness of new TSCA, we applaud these changes. The final rule provides a clear and concise statement of the primary objective of the prioritization process, that being to guide EPA towards identifying High-Priority Substances that have “the greatest hazard and exposure potential first.” While these words appeared in the proposal, the final deleted an additional concept in the proposed objective concerning consideration of the hazard and exposure of substitutes, stating that this belonged in the risk management stage. The final rule also makes clear that a Low-Priority designation means that a risk evaluation is not warranted at this time, and that it does not mean that EPA has made a conclusion of no unreasonable risk. Similarly, a High-Priority designation is just that; it is not a determination of unreasonable risk. The new language clarifying the limited meaning of priority designation is a welcomed and necessary addition and reflects EPA’s commitment to clear and effective communication.
The final rule added some new elements that either did not appear in the proposal or received only light treatment. These include: an explicit statement of EPA’s intent to collaborate with other agencies as stated in Section 26(a); an objective concerning Low-Priority designations stating that, as a policy matter, EPA was committed to making such designations on an ongoing basis beyond the statutory minimum; a statement that all TSCA Work Plan chemicals will eventually be prioritized; and adding direct references to acknowledge EPA’s commitment to meet the sound science provisions at Sections 26(h) and (i). The rule also included discussion of the new testing authority in Section 4(a)(2) as well as the Section 4 provisions regarding tiered testing and the vertebrate animal testing. Our analysis of the proposal had noted the absence of a number of these elements and we welcome all of these additions that, together, considerably strengthen the approach that will be applied.
The rule maintained some elements from the proposal such as prioritizing the chemical as a whole and not for some subset of uses. It also retained the additional extra-statutory prioritization criterion concerning “other risk-based criteria” that EPA determines to be relevant.
Regarding insufficient information, EPA has taken a practical and pragmatic approach by stating that it would generally not start prioritization if it did not have sufficient information needed to prioritize the chemical. This is a useful clarification of the approach that evidences a good faith effort to avoid premature initiation of prioritization while also addressing the role of voluntary calls for information and the use of Section 4 or 8 to assist in providing any needed information.
We also note that some of the information sources codified at 40 C.F.R. Section 702.9 in the regulatory text that are to be used in screening review likely do not conform to the scientific standards under Section 26. We draw attention in this regard to those listed in Appendix B of the Work Plan Methods Document that address use and exposure information. It remains to be seen the extent to which these sources meet the Section 26 requirements and are used in the prioritization process.
“Conditions of use” is one of the critical new concepts in the amended law and we appreciate the approach that EPA is implementing in the final rule. EPA states that it would early in the prioritization process identify the “circumstances” that constitute the conditions of use for each chemical and make a determination of the conditions of use that would be considered in the prioritization process. This determination would be presented for public comment as part of the proposed designation. This is a good addition that provides both clarity and transparency to the role played by conditions of use in prioritization while also providing EPA with needed flexibility. Thus, EPA will propose to designate a chemical as a High-Priority Substance if it meets the statutory requirement for High-Priority “under one or more activities that the Agency determines constitute conditions of use.” EPA then intends to evaluate the chemical’s conditions of use in the risk evaluation stage as part of determining if the chemical presents an unreasonable risk.
Two additional changes merit mention. EPA notes in the preamble that it “intends that the provisions of this rule be severable. In the event that any individual provision or part of this rule is invalidated, EPA intends that this would not render the entire rule invalid, and that any individual provisions that can continue to operate will be left in place.” This is a useful addition, but not a lock on severability. According to legal scholars, “the current judicial doctrine suggests that a reviewing court should not defer to it [administrative severability clauses].” C. Tyler and E. Elliott, Administrative Severability Clauses, Yale Law Journal (May 2015). These scholars argue otherwise, and suggest that reviewing courts should defer to administrative severability clauses and that agencies should more routinely include them in their rulemakings.
The second issue relates to EPA’s striking of the “issue preclusion” provision in the proposed rule relating to proposed designations as Low-Priority Substances. Under the proposed rule, comments that could be raised on the issues in the proposed designation must be raised during the comment period or would be considered waived. See 82 Fed. Reg. 4825, 4833, col. 1 (Jan. 17, 2017) (“issues not raised will be considered to have been waived”). EPA notes in the final rule that general provisions of administrative law provide sufficient assurance that comments will be raised timely, and deleted the proposed regulatory text. This too is a good change as the inclusion of this “issue preclusion” language was unnecessary and conspicuously punitive.Final Risk Evaluation Process Rule
The final risk evaluation process rule establishes EPA’s process for conducting risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use. EPA states that this process incorporates the science requirements of new TSCA, including best available science and weight of the scientific evidence. EPA notes that risk evaluation is the second step, after prioritization, in a new process of existing chemical substance review and management established under new TSCA. The final rule identifies the steps of a risk evaluation process, including scope, hazard assessment, exposure assessment, risk characterization, and finally a risk determination. EPA will use this process for the first ten chemical substances undergoing evaluation from the 2014 update of the TSCA Work Plan for Chemical Assessments, to the maximum extent practicable. Chemical substances designated as High-Priority Substances during the prioritization process and those chemical substances for which EPA has initiated a risk evaluation in response to a manufacturer request will always be subject to this process. The final rule includes the required “form and criteria” applicable to such manufacturer requests.
In response to public comments on the January 19, 2017, proposed rule, EPA states that it is: (1) adding direct references in the final rule to acknowledge EPA commitment to implementing the best available science and weight of the scientific evidence provisions in TSCA; (2) codifying its commitment to interagency collaboration; (3) allowing manufacturers to limit their requests for EPA-conducted risk evaluations to one or more specified conditions of use; and (4) allowing for risk determinations to be made on individual conditions of use or categories of conditions of use at any time once the Final Scope is published. EPA’s web page on the risk evaluation process includes the following overview of the steps in the process for existing chemicals:
As with the final prioritization process rule, EPA states that it intends that the provisions of the final risk evaluation process rule be severable. In the event that any individual provision or part of the rule is invalidated, EPA intends that this would not render the entire rule invalid, and that any individual provisions that can continue to operate will be left in place. As noted above, while useful, there is no guarantee a reviewing court will defer to EPA’s wishes in this regard.Policy Objectives
The objective of the final rule is to codify the process by which EPA evaluates risks from chemical substances under TSCA Section 6. EPA discusses those components of TSCA risk evaluation and key factors necessary to consider in each risk evaluation to ensure that the public has a full understanding of how risk evaluations will be conducted and to provide predictability in how they will be conducted.Scope of Evaluations
Given the strength and variety of the concerns presented in comments on the January 19, 2017, proposed rule, EPA reevaluated its proposal. EPA states that it went back to the direction on risk evaluation provided in new TSCA Section 6(b) and the legislative history, and developed an approach to the term “the conditions of use” that is “firmly grounded in the law, while accounting for the various policy considerations necessary for effective implementation of section 6.” According to EPA, its objective “is to ensure that it is able to focus on conducting a timely, relevant, high-quality, and scientifically credible evaluation of a chemical substance as a whole, and that it always includes an evaluation of the conditions of use that raise greatest potential for risk.” EPA will identify the “circumstances” that constitute the “conditions of use” for each chemical substance on a case-by-case basis. For most chemical substances, EPA expects to make this determination primarily during the prioritization of a chemical substance. For chemicals that are the subject of a manufacturer request, EPA intends to make this determination as part of the process for determining whether the request satisfies EPA’s criteria. EPA may, on a case-by-case basis, exclude certain activities that it has determined to be conditions of use to focus its analytical efforts on those exposures that are likely to present the greatest concern, and consequently merit an unreasonable risk determination.General Provisions
The general provisions of the final rule outline the purpose, scope, applicability, and enforcement of the rule.Definitions
EPA notes that new TSCA defines a number of key terms necessary for its interpretation, and the statutory definitions apply to this rule. To increase clarity and transparency, EPA included additional definitions in the rule. In the proposed rule, EPA asked for comments specifically on whether to codify definitions of terms, including “best available science,” “weight-of-the-scientific evidence,” “sufficiency of information,” “unreasonable risk,” and “reasonably available information,” among others. EPA states that it chose to define only terms that appear in new TSCA, including best available science, reasonably available information, and weight of the scientific evidence, among others. According to the notice, EPA agrees with many of the comments that defining these terms in the final rule “will instill confidence, increase transparency, and provide the public with assurance that EPA will adhere to the requirements of the statute.” Based on its review of the public comments received, EPA has also revised the proposed definitions to increase their clarity. The definitions include:
Best Available Science: Science that is reliable and unbiased. This involves the use of supporting studies conducted in accordance with sound and objective science practices, including, when available, peer reviewed science and supporting studies and data collected by accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data);
Conditions of Use: The circumstances, as determined by the EPA Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of;
Potentially Exposed or Susceptible Subpopulations: A group of individuals within the general population identified by the EPA Administrator who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly;
Reasonably Available Information: Information that EPA possesses, or can reasonably obtain and synthesize for use in risk evaluations, considering the deadlines for completing the evaluation. There is a preference for reasonably available information that is consistent with the required quality standards, however. Information that meets the terms of the preceding sentence is reasonably available information whether or not it is claimed as CBI; and
Weight of the Scientific Evidence: A systematic review method, applied in a manner suited to the nature of the evidence or decision, that uses a pre-established protocol to comprehensively, objectively, transparently, and consistently identify and evaluate each stream of evidence, including strengths, limitations, and relevance of each study and to integrate evidence as necessary and appropriate based upon strengths, limitations, and relevance.
EPA chose not to codify definitions for some terms, such as “systematic review,” “sufficiency of information,” or “unreasonable risk.” EPA reportedly intends to provide further details on systematic review and weight of scientific evidence approaches under TSCA in future guidance documents. EPA states that it agrees with commenters that the information required for chemical risk evaluations can be highly variable, and given the case-by-case nature of the hazard and exposure scenarios, it is difficult to have an overarching definition of “sufficiency of information” applicable to all evaluations. EPA identified considerations that it will use in making a risk determination, but has not defined “unreasonable risk” because “each risk evaluation will be unique.”Timing of Risk Evaluations
A risk evaluation is initiated upon the final designation of a High-Priority Substance at the completion of the prioritization process or through the completed manufacturer request process. A risk evaluation is complete upon the publication of the final risk evaluation, which includes the final risk determination for all the conditions of use identified in the Scope document. New TSCA requires EPA to complete risk evaluations within three years, with the possibility of a single six-month extension.Chemical Substances for Risk Evaluation
New TSCA defines a “chemical substance” to mean any organic or inorganic substance of a particular molecular identity, including: (1) any combination of such substances occurring in whole or in part as a result of a chemical reaction or occurring nature; and (2) and element or uncombined radical. Chemical substances do not include: (1) any mixture; (2) any pesticide (as defined in the Federal Insecticide, Fungicide, and Rodenticide Act) when manufactured, processed, or distributed in commerce for use as a pesticide; (3) tobacco or any tobacco product; (4) any source material, special nuclear material, or byproduct material (as such terms are defined in the Atomic Energy Act of 1954 and regulations issued under such Act); (5) any article the sale of which is subsequent to the tax imposed by Section 4181 of the Internal Revenue Code of 1954; and (6) any food, food additive, drug, cosmetic, or device (as such terms are defined in Section 201 of the Federal Food, Drug, and Cosmetic Act) when manufactured, processed, or distributed in commerce for use as a food, food additive, drug, cosmetic, or device. EPA states that it may be appropriate to consider potential risk from these non-TSCA uses in evaluating whether a chemical substance presents an unreasonable risk (as an aspect of background or aggregate exposure, for example), although these uses would not be within the scope of the risk evaluation nor could such risks be managed under TSCA.Process and Criteria for Manufacturer-Requested Risk EvaluationsScope of Request
EPA states that it modified its proposal in several ways. First, the final rule allows manufacturers to submit requests for risk evaluation on only the conditions of use of the chemical substances that are of interest to the manufacturer. According to the notice, EPA intends to conduct a full risk evaluation that encompasses both the conditions of use that formed the basis for the manufacturer request, and any additional conditions of use that EPA identifies. EPA will determine the additional conditions of use during the process of determining whether to grant or deny the manufacturer request.Information That Must Be Submitted as Part of Request
In the proposed rule, EPA required manufacturers to submit any risk assessment or evaluation that they might possess. EPA states that its intent was to use this as another source of information, and not as the basis for its decision. In response to public comments, EPA removed the requirement that the manufacturer must commit to providing EPA existing risk assessments on the chemical. According to the notice, EPA believes that all relevant risk information would be required to be provided pursuant to TSCA Section 8(e), and/or would be submitted in response to the regulatory provision that requires that the requesters provide any information relevant to the potential risks of the chemical substance under the circumstances identified in the request.Process for Evaluating Requests
Upon receipt of the request, EPA will verify that the request appears to be valid. Within 15 business days of receiving a facially valid request, EPA will publish on its website or in an e-mail announcement a public notice of the receipt, which will include the manufacturer request. Within 60 days from receipt, EPA will submit for publication an announcement of the receipt of the request in the Federal Register, open a docket for the request, make available the information that has been submitted (taking into account any valid CBI claims), and provide no less than a 45-day comment period. The notice will include the manufacturer request and EPA’s proposed determinations as to whether the activities identified are conditions of use that warrant risk evaluation, and whether there are additional conditions of use that need to be included in the risk evaluation.
Within 60 days after the end of the comment period, EPA will review the request along with any additional information received to determine whether the request meets the regulatory criteria and will notify the manufacturer(s) accordingly. If EPA determines that the request is compliant, EPA will grant the request. Otherwise, EPA will deny the request. Requesters may resubmit any denied request. Within 30 days of the notice that EPA will grant the request, the requester may withdraw the request for any reason. The process for conducting the risk evaluation will follow the regulatory requirements applicable to High-Priority chemical risk evaluations and will not be expedited or otherwise afforded special treatment. EPA will initiate the risk evaluation upon payment of the required fees. EPA states that it will address the fee amount in a separate rulemaking.
EPA will give preference to requests where there is evidence that restrictions imposed by one or more states have the potential to have a significant impact on interstate commerce or health or the environment, and is therefore proposing to allow (but not require) manufacturers to include any evidence to support such a finding. Following this required initial preference, EPA will give further preference to requests in the order in which a request is received. Unlike the proposed rule, the final rule does not include a preference for chemicals where EPA determined that there were relatively high estimates of hazard and/or exposure for the chemical substance.Interagency Collaboration
In the proposed rule, EPA did not limit potential interagency collaboration by proposing to codify any particular process. EPA states that it codified collaboration in the final rule, however, “to give the public confidence that EPA will work with other agencies to gain appropriate information on chemical substances.” EPA notes that by mandating consultation at any particular stage, it does not intend to imply that collaboration will occur solely at that step of the process, “but including this collaboration upon initiation gives other agencies sufficient time to work with the EPA to identify any information that will be useful for EPA risk evaluation (e.g., existing regulations or mission critical uses) of the chemical substance.” According to the notice, EPA also plans to engage with state and local agencies where they may have information to inform risk evaluations and to increase collaboration with tribes, “as they can be impacted by chemical substances differently due to unique traditional activities and lifestyles.”Risk Evaluation RequirementsConsiderations
This subpart identifies and discusses what EPA will consider in conducting a risk evaluation. The first subpart identifies the necessary components of the risk evaluation process -- a scope, which will include a Conceptual Model and Analysis Plan, a hazard assessment, an exposure assessment, a risk characterization, and a risk determination. EPA is not codifying a list of guidance (with the exception of the Metals Framework as mandated by new TSCA), but states that guidance may be used if it constitutes the best available science, and is consistent with the weight of the scientific evidence.Agency Guidance
The final rule does not codify a list of guidance (with the exception of the Metals Framework as mandated by new TSCA), but states that the scope of each risk evaluation will identify those guidance documents that the Agency expects to utilize to inform the risk evaluation to the degree that they represent the best available science appropriate for the particular risk evaluation. At the same time, EPA recognizes that some guidance may be outdated and may rely on defaults.Categories of Chemical Substances
EPA states that the final rule includes a clear statement that nothing in the rule shall be construed as a limitation on EPA’s authority to take action with respect to categories of chemical substances, and that, where appropriate, EPA can evaluate categories of chemical substances.Science Requirements
EPA incorporated into the final rule the statutory requirements regarding best available science and weight of the scientific evidence. Definitions of those terms have also been added. According to the notice, while EPA prefers high quality data, where available, “EPA recognizes that data is not always necessary to reach a scientifically grounded conclusion on the potential risks of a chemical substance, within the timeframes dictated by the statute.”Fit-for-Purpose Risk Evaluations
Each risk evaluation will be fit-for-purpose -- “that is to say, the level of refinement will vary as necessary to determine whether the chemical substance presents an unreasonable risk, given the nature of the evidence, for the conditions of use of a specific chemical substance.”Timing of a Risk Determination
The final rule explicitly recognizes that EPA may make early risk determinations to manage unreasonable risks as they are identified, through the issuance of a regulation under TSCA Section 6(a), or to notify the public as soon as possible of the safety of a chemical substance under a particular condition of use.Metals or Metal Compounds
As required by new TSCA, when evaluating metals or metal compounds, EPA must use the Metals Framework or a successor document that addresses metals risk assessment and is peer-reviewed by the Science Advisory Board.Information and Information Sources
For those chemical substances designated as High-Priority for risk evaluation, EPA states that it expects to initiate the process when it has determined that most of the information necessary to complete the evaluation is reasonably available, which in most cases means the information already exists.Risk Evaluation StepsScope
According to the notice, the scope of each risk evaluation will include the following components: the conditions of use, as determined by the EPA Administrator, that EPA plans to consider in the risk evaluation; the potentially exposed or susceptible subpopulations EPA expects to consider; the ecological receptors; and the hazards to human health and the environment EPA plans to evaluate. In response to comments, under the final rule, the scope will focus on the reasonably available information and science approaches, and reserve uncertainty considerations specifically for the remainder of the risk evaluation. EPA will include a conceptual model that will describe the actual or predicted relationships between the chemical substance and the receptors, either human or environmental, with consideration of potential hazards throughout the life cycle of the chemical substance, as well as an analysis plan that will identify the approaches and methods EPA plans to use to assess exposure, hazards, and risk. The scope will also include the plan for peer review that EPA expects to consider.
EPA will publish a notice in the Federal Register announcing the availability of the final scope within six months of the initiation of the risk evaluation. Although not required under new TSCA, EPA states that it will publish a draft scope and provide for no less than a 45-calendar day public comment period during this six-month period.Hazard Assessment
In compliance with new TSCA Section 6(b)(4)(F), EPA will conduct a hazard assessment on each chemical substance or category, under the conditions of use as identified in the scope. EPA states that a hazard assessment identifies the types of adverse health or environmental effects or hazards that can be caused by exposure to the chemical substance in question, and to characterize the quality and weight of the scientific evidence supporting this identification. EPA will present the hazard information, as identified in the scope, for the identified exposure scenarios, and including any identified potentially exposed or susceptible subpopulation. For human health hazards, the assessment will consider all potentially exposed or susceptible subpopulation(s) identified in the scope. EPA states that it will use an appropriate combination, if available, of population-based epidemiological studies, information related to geographic location of susceptible subpopulations, models representing health effects to the population, and any other information or methodology consistent with scientific standards. An environmental hazard assessment will evaluate the relationship between the chemical substance and the occurrence of an ecological response. This assessment may be conducted using reasonably available information from field or laboratory data, modeling strategies, and species extrapolations, if needed.Exposure Assessment
An exposure assessment will include information on chemical-specific factors, including but not limited to physical-chemical properties and environmental fate and transport parameters. EPA notes that it included these considerations in the proposed rule, however, it added “transport” to the final text. EPA states that an exposure assessment includes some discussion of the size, nature, and types of individuals or populations exposed to the agent, as well as discussion of the uncertainties in this information. According to EPA, exposure can be measured directly, but when data are unavailable, it is estimated indirectly through consideration of measured concentrations in the environment, consideration of models of chemical transport and fate in the environment, and estimates of human intake or environmental exposure over time.Risk Characterization
New TSCA Section 6(b)(4)(F) requires that a risk evaluation “integrate and assess available information on hazards and exposures.” EPA states that a risk characterization conveys the risk assessor’s judgment as to the nature and presence or absence of risks, along with information about how the risk was assessed, where assumptions and uncertainties still exist, and where policy choices will need to be made. EPA amended the final rule to include all of the statutory requirements of the risk evaluation process, including: not considering costs or other non-risk factors; taking into account the likely duration, intensity, frequency, and number of exposures under the condition(s) of use; and a description of the weight of scientific evidence for the identified hazards and exposures. The EPA’s Information Quality Guidelines will be used to provide guidance for presenting risk information in the risk characterization section of the risk evaluation.Peer Review
For each risk evaluation conducted on chemicals identified pursuant to new TSCA Section 6(b)(4)(A), EPA will conduct a peer review using the guidance provided in executive branch peer review directives, including in the Office of Management and Budget Final Information Quality Bulletin for Peer Review and in the EPA Peer Review Handbook or its updates. EPA will take public comment on the charge questions given to peer reviewers. According to the notice, the peer review will address aspects of the science underlying the assessment, including but not limited to hazard assessment, assessment of dose-response, exposure assessment, and risk characterization. EPA will include this information as part of the draft scoping document on which public comment will be solicited for each chemical substance that undergoes risk evaluation.Unreasonable Risk Determination
EPA states that the final step of a risk evaluation is for EPA to determine whether the chemical substance, under the conditions of use, presents an unreasonable risk of injury to health or the environment. According to the notice, EPA will make individual risk determinations for all uses identified in the scope. EPA notes that it amended this part of the regulation from the proposed rule to clarify that the risk determination is part of the risk evaluation, as well as to account for the revised approach that ensures each condition of use covered by the risk evaluation receives a risk determination. In responding to comments, EPA agreed to clarify in the draft and final risk evaluation documents specifically which condition(s) of use warrant risk management and which do not.Reassessment of Unreasonable Risk Determination
EPA stated in the proposed rule that it may reassess determinations of unreasonable risk. Following review of the comments, EPA deleted the provision, however. Generally, EPA notes, agencies are authorized to revisit determinations they are charged by statute to make, and nothing in new TSCA prevents EPA from doing so.Additional Publicly Available Information
Pursuant to TSCA Section 26(j), and subject to TSCA Section 14, the final rule specifies that EPA will make available: (1) the draft scope, final scope, draft risk evaluation, and final risk evaluation; (2) all notices, determinations, findings, consent agreements, and orders; (3) any information required to be provided to EPA under Section 4; (4) a nontechnical summary of the risk evaluation; (5) a list of the studies, with the results of the studies, considered in carrying out each risk evaluation; (6) each determination as to whether the chemical substance presents an unreasonable risk under one or more conditions of use, along with an identification of the information, analysis, and basis used to make the designation; (7) the final peer review report, including the response to peer review and public comments received during peer review; and (8) response to public comments received on the draft scope and the draft risk evaluation. EPA states that the final rule includes a few “slight changes” from the proposed rule, largely to conform to changes made to other sections of the rule.Commentary on Risk Evaluation Rule
The final risk evaluation rule is a well written document that uses clear language and terminology to describe the role of statutory requirements in conducting a TSCA risk evaluation. The stated policy objective of this action is to codify the process by which the Agency evaluates risks from chemical substances under TSCA Section 6. To advance this objective, EPA incorporated the scientific standards under Section 26 and provided definitions for key terms that appear in the rule for specific components of the risk evaluation process. Codified definitions include: aggregate exposure; best available science; conditions of use; pathways; potentially exposed or susceptible subpopulations; reasonably available information; routes; sentinel exposure; uncertainty and variability; and weight of the scientific evidence. Definitions incorporated but not codified include: systematic review; sufficiency of information; and unreasonable risk. The definitions for aggregate exposure, pathways, routes, and uncertainty and variability reflect current Agency policies and practices. The definition for sentinel exposure follows approaches widely used by government institutions in Canada and the European Union. The definitions for systematic review, sufficiency of information, and unreasonable risk were crafted to reflect the evolving nature of the activity and the flexibility necessary to adapt to changes in practices.
Among the codified definitions, there are some that signal a policy shift relative to early public statements by EPA. EPA states that it interprets the mandates under Sections 6(a) and (b) to conduct risk evaluations and any corresponding risk management to focus on uses for which manufacturing, processing, or distribution in commerce is intended, known to be occurring, or reasonably foreseen to occur prospectively or ongoing. This approach would exclude evaluation of the risks associated with legacy uses, associated disposal, and legacy disposal (each of these concepts is discussed in the rule preamble). EPA relies upon established principles of statutory construction that generally presume laws are not to be interpreted retroactively or to have retroactive effect. Legal scholars may disagree, however, if there is a meaningful and important distinction between applying a law retroactively and allowing EPA to consider past manufacturing, processing, distribution, use, and disposal practices of a chemical substance in conducting a risk evaluation of a chemical substance. This is the context for EPA’s interpretation of the statutory definition of conditions of use, which require activities under conditions of use to be ongoing or prospective only. EPA declined to formulate at this time a specific test for identification of reasonably foreseen conditions but indicated that the described case-by-case approach will be highly fact-specific and not based upon hypotheticals or conjecture. EPA also makes clear that it is not required to consider all conditions of use in a risk evaluation and may focus its efforts on those exposures that are likely to pose the greatest concern. EPA generally expects to exercise its discretion under Section 6(b)(4)(D) to exclude uses from the scope of risk evaluations.
Weight of the scientific evidence is another key definition in this process. This carefully crafted definition applies to both human health and ecological risk evaluations and follows basic principles of scientific review that combine into a general definition that retains flexibility and allows for the incorporation of scientific advances. A key phrase in the definition “… applied in a manner suited to the nature of the evidence or decision ...” recognizes that not all conditions of use require the same level of evaluation and it signals that different weight of scientific evidence review methods may be appropriate for different information, types of evaluation, or decisions. This is consistent with the concept of “fit-for-purpose,” which means that while EPA will consistently apply the principles contained in the definition, the depth or extent of the analysis will be commensurate with the nature and significance of the decision. These are welcome actions that contribute to increase transparency and confidence in the process.
This rule defines a process with standards and features unique to TSCA. As such, it represents a significant step toward the development of a scientifically strong and reliable TSCA framework for the risk evaluation of chemicals.Final TSCA Inventory Notification (Active-Inactive) Rule
The final TSCA Inventory notification (active-inactive) rule establishes a retrospective electronic notification of chemical substances on the TSCA Inventory that were manufactured (including imported) for nonexempt commercial purposes during the ten-year time period ending on June 21, 2016, with provision to also allow notification by processors. EPA will use these notifications to distinguish active substances from inactive substances. EPA states that it will include the active and inactive designations on the TSCA Inventory and as part of its regular publications of the Inventory. The final rule also establishes procedures for forward-looking electronic notification of chemical substances on the TSCA Inventory that are designated as inactive, if and when the manufacturing or processing of such chemical substances for nonexempt commercial purposes is expected to resume. On receiving forward-looking notification, EPA will change the designation of the pertinent chemical substance on the TSCA Inventory from inactive to active. The final rule establishes the procedures regarding the manner in which such retrospective and forward-looking activity notifications must be submitted, the details of the notification requirements, exemptions from such requirements, and procedures for handling claims of confidentiality.
The final rule will be effective upon publication in the Federal Register. As with the final prioritization process rule and risk evaluation process rule, EPA states that it intends that the provisions of the final TSCA Inventory rule be severable. In the event that any individual provision or part of the rule is invalidated, EPA intends that this would not render the entire rule invalid, and that any individual provisions that can continue to operate will be left in place. As noted, it is unclear if reviewing courts will defer to EPA in this regard.Reportable Chemical Substances and Activities under the Final Rule
The retrospective reporting requirements apply to chemical substances listed on the TSCA Inventory that were manufactured for nonexempt commercial purposes during the ten-year period ending on June 21, 2016. EPA notes that this “lookback period” is set by new TSCA. The forward-looking reporting requirements apply to substances listed as inactive on the Inventory that are to be reintroduced into U.S. commerce for nonexempt purposes. The Inventory is available at https://www.epa.gov/tsca-inventory.Exemptions from Reporting
The scope of chemical substances covered under the final rule is reflected in the definitions of “chemical substance subject to commercial activity designation” and “reportable chemical substance” at 40 C.F.R. Section 710.23, which exclude substances that are not chemical substances and substances that are not listed on the Inventory. For example, according to EPA, a substance that is not considered a “chemical substance” (as provided in new TSCA Section 3(2)(B) and in the definition of “chemical substance” in 40 C.F.R. Section 710.3(d)) is not a “chemical substance subject to commercial activity designation” or a “reportable chemical substance” and it thus cannot become an “active substance” or an “inactive substance.” A similar analysis applies with respect to a mixture (as defined in 40 C.F.R. Section 710.3(d)), although EPA notes that individual Inventory-listed substances present in the mixture may be subject to reporting. Additionally, a substance that has not been added to the Inventory because it is manufactured solely under a TSCA Section 5(h) exemption (e.g., low release and low exposure exemption, low volume exemption (LVE), polymer exemption, research and development exemption, test marketing exemption) is not a “chemical substance subject to commercial activity designation” or a “reportable chemical substance” and it cannot become an “active substance” or an “inactive substance.”
Naturally occurring chemical substances also are excluded from reporting provided the manufacturing and processing of such substances meet the criteria set forth in 40 C.F.R. Section 710.27(b). EPA states that it is designating the category of “Naturally Occurring Chemical Substances” as active substances, thereby excluding them from reporting.
Manufacturing or processing a chemical substance listed on the Inventory solely for an exempt commercial purpose is not subject to reporting requirements. EPA states that while it expects that many chemical substances manufactured or processed for exempt commercial purposes will not be listed on the Inventory (due to similar exemptions under premanufacture notification (PMN) regulations), and therefore are already excluded from reporting, the activity exemptions listed at 40 C.F.R. Section 710.27(a) clarify circumstances under which a person is exempt from reporting requirements for the manufacturing or processing of a chemical substance that has been listed on the Inventory (e.g., due to another manufacturer’s actions). For example, according to EPA, the manufacturing or processing of impurities or byproducts that have no subsequent commercial purpose will not trigger reporting obligations. Additionally, manufacturing or processing in small quantities solely for research and development is exempt as described in 40 C.F.R. Sections 710.3(d) and 710.27(a)(1). Furthermore, according to EPA, the import or processing of substances solely as parts of articles is not subject to reporting under the rule. See 40 C.F.R. Section 710.27(a)(2). EPA revised the rule to clarify that manufacturing or processing a chemical substance solely for export from the U.S. or for test marketing purposes are also exempt commercial purposes not subject to reporting requirements. See 40 C.F.R. Section 710.27(a)(4) and (5).
The final rule establishes an exemption from the retrospective reporting requirement for three different circumstances in which EPA has already received equivalent notice that a chemical substance was manufactured during the lookback period, and further requirement to submit a notice would therefore be inconsistent with new TSCA Section 8(a)(5)(B):
Chemical substances that are on the interim list of active substances described in new TSCA Section 8(b)(6) will be designated as active substances, by operation

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The EPA Is Seeking Scientists to Staff an Air Pollution Advisory Committee, but Some Environmental Groups Worry the Trump Administration Will Replace Members Finishing Their First Term and Give Industry Groups More Say on Scientific Matters.

Jun 27, 2017 | Inside EPA

A group of 13 Democratic attorneys general (AGs) is urging senators to vote down a pending regulatory reform bill that would create a host of new requirements for EPA and other agencies seeking to write new rules, saying it would block any effort by the agency to ban asbestos under the reformed Toxic Substances Control Act (TSCA) even though the new law was approved to prevent such a hurdle.
The June 26 letter to Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY), signed by AGs for 12 states and Washington, D.C., opposes S. 951, which cleared the Senate Homeland & Government Affairs Committee at a May 17 markup but has yet to appear on the Senate calendar to pave the way for a vote by the full chamber.
The letter echoes claims by environmentalists and Senate Democrats who have opposed the bill that it would effectively block any effort by EPA to regulate asbestos and other toxic substances under the new TSCA -- despite claims from members of both parties that the new law is intended to speed up agency TSCA rules.
While S. 951 is co-sponsored by Sen. Heidi Heitkamp (D-ND), other Democrats seen as vulnerable in 2018, such as Sen. Claire McCaskill (D-MO), have opposed it, suggesting that Republicans may not be able to leverage potential 2018 election concerns into support for the bill sufficient to defeat a filibuster.
S. 951 would broadly amend the Administrative Procedure Act, creating new procedural steps for EPA and other agencies to follow before issuing “major” or “high-impact” final rules, requiring additional public hearings on proposed rules, as well as imposing new judicially reviewable cost-benefit requirements -- all of which the AGs say would slow down the development of agency rulemakings.
“Formal hearings, by design, also favor special interests with the financial resources to enlist attorneys, hire experts, and put on witnesses, thus allowing such interests to exert undue influence over the process at the expense of ordinary Americans and small businesses. Not only will these procedural mechanisms thus delay rulemaking, they will make it even more difficult for members of the public who lack those same financial resources to participate in rulemaking processes that are intended to protect and benefit them,” the letter says.
In particular, they target a requirement that final rules must “represent the 'most cost-effective' alternative” for achieving the government's goals. The AGs say that mandate would present the same difficulties as language in the original TSCA that required EPA to use the “least burdensome” restrictions needed to protect public health.
That language blocked the agency's 1989 bid to ban asbestos, as a federal appeals court held that despite almost 10 years of study the agency had not proved that a ban was the least burdensome way to protect the public from asbestos exposure. The precedent set in that case, Corrosion Proof Fittings v. EPA, was cited by supporters of the TSCA reform law enacted in 2016 as a major reason the statute needed to be rewritten.
“As an example of the regulatory gridlock and litigation that would result from enactment of a 'most cost-effective' standard, one need look no further than the litigation over the Environmental Protection Agency’s (EPA) application of the 'least burdensome alternative' standard in the Toxics Substances Control Act (TSCA) to its proposed rule regulating asbestos over two decades ago,” the AGs' letter says.
The states also target the ability of the White House Office of Management & Budget's Office of Information and Regulatory Affairs to decide which rules are “major” and thus subject to expanded procedural requirements.
That provision would “give [OIRA] and agencies unreviewable discretion to determine whether a rule is 'high-impact' or 'major,' which determines when the cumbersome new procedural rules may apply,” the letter says.
The letter is signed by the AGs of New York, California, Delaware, Iowa, Maine, Maryland, Oregon, Massachusetts, Rhode Island, Vermont, Oregon, Washington and Washington, D.C.
https://insideepa.com/daily-feed/democratic-ags-fear-regulatory-reform-bill-would-stymie-asbestos-ban

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Chemical Management News

Consultant: Expect More Questions on 'Chemicals of Concern'

Jun 26, 2017 | Plastics News

By Roger Renstrom

Processors may be facing more questions about details of their products by their customers in the near future, a consultant warned members at the Western Plastics Association's annual conference in Sonoma in May.
Tony Kingsbury talked about “chemicals of concern” and wondered if their regulation is backed by science or sensationalism. Kingsbury is founder and president of the sustainability consultancy TKingsbury LLC of San Ramon, Calif.
In today’s transparent environment, “opponents will use any means to remove products they don’t like,” he said. Nonprofit nongovernmental advocacy organizations “will play by their own rules, [and] California regulators are playing fast and loose.”
Plastics industry players need to “work with associations to fight bad science,” Kingsbury noted. “Don’t wait for it to come to you. Don’t wait for it to hit you and your products directly.”
His advice: “Understand what ingredients are in all the products you use.”
Major retailers such as Unilever NV, Target Corp., Wal-Mart Stores Inc. and Clorox Co. are “now asking what goes in the package,” Kingsbury said. “Next, they will ask what is the package made of.”
http://www.plasticsnews.com/article/20170626/NEWS/170629925/consultant-expect-more-questions-on-chemicals-of-concern

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The 10 Most Contaminated Foods in Your Fridge You Need to Trash Right Now—and Healthier Alternatives

Jun 27, 2017 | AlterNet

By Annie B. Bond

As ubiquitous as chemical contamination is in our environment, we often don’t think about our food supply as carrying a high chemical load. But it can—and does. Much of this is added through industrial farming methods, food processing and packaging. Not all of food contamination comes from these industrial activities, however, and awareness can go a long way toward protecting yourself and your family from exposure.
Fortunately, you can flip the switch to have a healthier diet to reduce your chemical exposure. Here are 10 of the most contaminated foods in your refrigerator that you should throw away right now—and healthy alternatives.
1. Mustard
(image: Yuriy Golub/Shutterstock)
We all know the look of the plastic mustard squeeze bottle that is an iconic image of convenience food in the U.S., a mainstay of backyard barbeques and picnic tables.
Also: Processed foods and drinks (including unexpected ones, such as cheap beer).
Chemicals of Concern: Food dyes, preservatives, chemicals to adjust textures, emulsifiers, natural and artificial flavorings, plasticizers.
The problem: Concerns include cancer, ADHD and gut-health disruption. Environmental Working Group has a thoughtful discussion of 12 harmful additives and how to avoid them.
Simple switch: Choose food and drinks without chemical additives. Look for artisan producers.
Tips: Shop at health food stores, read labels, call companies for ingredients when labels don’t list additives and eat real food.
2. Unfiltered and/or bottled water and drinks
(image: photo/Shutterstock)
Water is a solvent so it is especially important that we store it in inert containers such as glass or stainless steel.
Also: Juice, soda, other drinks stored in polycarbonate, other plastic, or aluminum cans (as in seltzer); unfiltered water.
Chemicals of concern: Packaging containing bisphenol-A (BPA) (polycarbonate), plastics, aluminum; ground water and municipal water contaminants; #1 Polyethylene terephthalate, PET or PETE (disposable soft drink, juice, water bottles; resins can contain flame retardants; aseptic packaging); #2 HDPE (cloudy milk and water jugs); resins can contain flame retardants, #3 PVC (some soft beverage bottles contain PVC); #7 Polycarbonate (a plastic that contains BPA).
The problem: Water and drinks can be contaminated from chemicals such as BPA leaching out from the packaging, causing endocrine disruption; long–lasting chemicals stored in fat; carcinogens. It is hard to imagine any groundwater system in the world that isn’t contaminated, and municipal water filters a range of chemicals but not all and includes additives. Filtering water is the safest approach.
Simple switch: Drink filtered water and natural drinks stored in glass.
Tip: Note that BPA-free bottles does not mean they are free from endocrine-disrupting chemicals.
3. Bagels
(image: Dariia Belkina/Shutterstock)
Glyphosate, the active ingredient in Monsanto's popular Roundup herbicide, has contaminated a wide swath of the U.S. food supply.
Also: Bread and wheat cereal; GMO foods such as soy, corn, canola, alfalfa, dried legumes, sorghum, grains, and seeds.
Chemicals of concern: Glyphosate “Roundup Ready” herbicide.
The problem: Glyphosate has been reported in scientific reviews to have a negative impact on gut health and cause gluten intolerance and even celiac disease. In 2015, the International Agency for Research on Cancer, part of the World Health Organization, classified glyphosate as a "probable carcinogen." Many non-GMO grains, seeds and legumes receive a dose of Roundup immediately prior to harvest—a process know as desiccation.
Simple switch: Choose organic, non-GMO labeled foods.
Tips: Look for the “Non-GMO” label or make your bagels at home with organic ingredients.
4. Cheese in plastic packaging
(image: 54613/Shutterstock)
Plastic tends to migrate into fatty foods, especially hot fatty foods, leaching endocrine disruptors.
Also: Other foods and leftovers packaged or stored in plastic, especially hot fatty foods (such as those heated in plastic a microwave)
Chemicals of concern: Leaching plasticizers such as phthalates and BPA; #1 Polyethylene terephthalate (PET or PETE) (disposable soft drink, juice, and water bottles; boil-in-a-bag foods, aseptic packaging); #2 High density polyethylene HDPE (tubs for butter and other dairy products); #3 polyvinyl chloride (PVC) (meat wrap, bottles for salad dressing); #4 low density polyethylene LDPE (cling wrap, sandwich bags, plastic squeeze bottles); #5 polypropylene (PP) (cloudy plastic water bottles; yogurt cups and tubs; food packaged hot, such as syrups; #6 polystyrene (PS) (disposable hot beverage cups and plates, clamshell take-out containers; egg cartons); #7 polycarbonate (hard plastic such as baby bottles, some reusable water bottles; stain-resistant food storage containers).
The problem: Almost all plastic products, including those advertised as "BPA-free," have been found to leach endocrine-disrupting chemicals, which are implicated in the precipitous rise in breast and prostate cancer as well as ADHD and other cognitive disorders.
Simple switch: Store in glass.
Tips: Make sure you don’t take cheese in plastic on picnics when the weather is warm. Stock up on glass food containers or stainless steel for children’s lunches and snacks when glass containers could be dangerous.
5. Take-out leftovers
(image: ThamKC/Shutterstock)
Many food wrappers and takeout containers have high resulting fluorine, an indicator of perfluorinated chemicals (PFCs), a chemical similar to Teflon.
Also: Polystyrene, paper coated with Teflon-like chemicals, plastic containers.
Chemicals of concern: #6 polystyrene (PS) may leach styrene; plastic migration into food from plastic containers; PFC.
The problem: Endocrine-disrupting chemicals, industrial chemicals stored in fat, neurotoxic chemicals in polystyrene, Teflon-like chemicals that are long-lasting in the environment and our bodies.
Simple switch: Glass; food-grade butcher’s paper.
Tip: California is the first state to ban PFCs.
6. Spaghetti sauce cooked in aluminum/non-stick pans and/or from cans
(image: Hurst Photo/Shutterstock)
Chemicals from the pans you cook with can leach into your food. Acidic foods such as tomato sauce are especially prone to leach chemicals from pots and cans.
Also: Anything cooked in non-stick or aluminum pans, canned food.
Chemicals of concern: Aluminum, perfluorooctanic acid (PFOA), BPA and other plasticizers.
The problem: Aluminum and/or non-stick pan PFOA contamination migrating into food. PFOA is long lasting in the body and is a likely carcinogen and endocrine disruptor, plasticizers are widely known to be endocrine disruptors, aluminum can accumulate in the brain with unknown consequences.
Simple switch: Cook in inert pans/materials, such as glass, baked enamel and stainless steel.
Tip: Anodized aluminum cookware has placed a hard, non-reactive surface over the aluminum, blocking the leaching. Because a can’s label says it is BPA-free doesn’t mean the replaced plasticizer isn’t an endocrine disruptor.
7. Swordfish
(image: Marina Onokhina/Shutterstock)
Ocean water carries a lot of toxic chemicals, including neurotoxic mercury, and they find their way into the bodies of fish. The more long-lived and high on the food chain, the more toxic the fish can be.
Also: Shark, king mackerel, tilefish, northern pike, marlin, tuna, imported Mahi Mahi, Atlantic and Pacific cod, Atlantic halibut.
Chemicals of concern: Mercury, heavy metals.
The problem: Mercury and other heavy metals are highly toxic to the peripheral nervous system and have a negative effect on the digestive and immune system; they can cause heart problems.
Simple switch: Track the healthiest fish to eat at Monterey Bay Aquarium Seafood Watch.
Tip: As coal-fired plants are being reduced in number, the amount of mercury found in tuna, for example, is dropping. Track the progress at seafoodwatch.org.
8. Strawberries
(image: KatyaPulina/Shutterstock)
Heavy industrial farm spraying leaves residues on fruit and vegetables.
Also: Spinach, nectarines, apples, peaches, pears, grapes, cherries, celery, tomatoes, potatoes, and sweet bell and hot peppers. (This list is from the May 2017 “Dirty Dozen” report by the Environmental Working Group.)
Chemicals of concern: Pesticides, herbicides.
The problem: Neuorotoxic, carcinogenic.
Simple switch: Buy organic.
Tip: Buy foods from the list of the safest “Clean Fifteen” non-organic foods.
9. Full-fat milk
(image: Dan Groy/Shutterstock)
Animals high on the food chain can have high concentrations of industrial chemicals stored in their fat. Humans are at the top of the food chain.
Also: Other foods high on the food chain, such as beef, pork, chicken, fish, and other dairy.
Chemicals of concern: PCBs (insulators and coolants), PBDEs (flame retardants), dioxin and DDT.
The problem: The chemicals are long-lasting in the environment and in our bodies. They can cause cancer, liver damage, birth defects, reproductive disorders and more, depending on the contaminant.
Simple switch: As often as you can, eat low on the food chain, such as organic produce, grains and legumes.
Tip: Prioritize a plant-based, low-fat diet.
10. Peeled garlic cloves from China
(image: Photographee.eu/Shutterstock)
While sometimes difficult to isolate, much produce from China is heavily contaminated with lead and other heavy metals.
Also: Other foods imported from China have a strong probability of lead and heavy metal contamination; even so-called “organic” foods imported from China deserve scrutiny.
Chemicals of concern: Heavy metals such as lead.
The problem: Lead is very neurotoxic and can lower the IQ, heavy metals can cause a host of health problems including to the heart.
Simple switch: Buy U.S.-grown organic produce.
Tip: Country of Origin labeling is complex. Check out this excellent overview from the American Frozen Food Institute.
Protecting your health and the health of your family from the chemical assault of industrialized agriculture and toxic food packaging can seem daunting. But if you follow these simple tips, you're well on your way to becoming more aware of what kinds of foods to stay away from, and what kinds to buy. You'll soon find that keeping the toxic stuff out of your kitchen and home will become second nature.
http://www.alternet.org/food/10-most-contaminated-foods-your-fridge-you-need-trash-right-now-and-healthier-alternatives

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Monsanto Weed-Killer Roundup Causes Cancer, California Says

Jun 26, 2017 | Newsweek

By Douglas Main

The herbicide glyphosate, the main ingredient in Monsanto’s weed killer Roundup, will be classified by California as a carcinogen, “known to the state to cause cancer.” The state’s Office of Environmental Health Hazard Assessment reported the news June 26, although it will officially take effect July 7.
Monsanto sued the state earlier this year to prevent the listing, but lost. However, the St. Louis-based company is appealing the ruling, which forces Monsanto, and any other company using glyphosate, to issue a warning label on packaging. The state environmental office told Reuters that Monsanto has not been granted a stay so the listing will go ahead next month despite the appeal.
“This is not the final step in the process, and it has no bearing on the merits of the case,” said Scott Partridge, Monsanto’s vice president of global strategy, in an email. “We will continue to aggressively challenge this improper decision.” He added that the listing is “unwarranted on the basis of science and the law.”
In March 2015, the International Agency for Research on Cancer (IARC)—part of the World Health Organization— classified glyphosate as a “probable carcinogen.” That ruling has been controversial, to say the least, and is the basis for California’s actions. A Reuters investigation published earlier this month has raised question about the classification, however. That piece shows that Aaron Blair, the head of the IARC’s glyphosate research group, had access to data from a large study (which hadn’t yet been published) suggesting that the weed killer likely wasn’t linked to cancer. That study notwithstanding, numerous papers published as of March 2015 (and since) do seem to suggest a link a link between glyphosate and certain cancers, and IARC has said it’s sticking with its classification.
California is required under the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65, to publish a regularly updated list of chemicals thought to cause cancer or birth defects.
“California’s decision makes it the national leader in protecting people from cancer-causing pesticides,” said Nathan Donley, a former cancer researcher and senior scientist at the Center for Biological Diversity, an environmental group, in an emailed statement. “The U.S. EPA now needs to step up and acknowledge that the world’s most transparent and science-based assessment has linked glyphosate to cancer.
http://www.newsweek.com/monsanto-week-killer-roundup-causes-cancer-california-629227

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Energy News

(ACC Mentioned) Is Louisiana Standing On The Sidelines While The Shale Revolution Happens?

Jun 27, 2017 | The Hayride

By Kevin Boyd

The fracking boom has changed America’s energy landscape for the better. It has made natural gas much cheaper than before.
It has also had an effect on the entire petrochemical industry. It has made the feedstocks for plastics much cheaper. That along with a growing middle class around the world are set to create a petrochemical boom in the U.S.
From the Wall Street Journal:
When new parents in Rio de Janeiro buy baby food in plastic containers, they are bringing home a little piece of the U.S. shale revolution.
That boom in drilling has expanded the output of oil and gas in the U.S. more than 57% in the past decade, lowering prices for the primary ingredients Dow ChemicalCo. uses to make tiny plastic pellets. Some of the pellets are exported to Brazil, where they are reshaped into the plastic pouches filled with puréed fruits and vegetables.
Tons more will be shipping soon as Dow completes $8 billion in new and expanded U.S. petrochemical facilities mostly along the Gulf of Mexico over the next year, part of the industry’s largest transformation in a generation.
The scale of the sector’s investment is staggering: $185 billion in new U.S. petrochemical projects are in construction or planning, according to the American Chemistry Council. Last year, expenditures on chemical plants alone accounted for half of all capital investment in U.S. manufacturing, up from less than 20% in 2009, according to the Census Bureau.
You would think this is good news for Louisiana. After all, the state has a large petrochemical industry. However, Louisiana is mostly missing the boat on this.
Louisiana continues to miss the petrochemical infrastructure improvements that are going to be needed to take advantage of this boom. Earlier this year, Texas beat out Louisiana for a $10 billion new chemical plant.
Why is Texas going to benefit more from the fracking boom than Louisiana? Because unlike Louisiana, Texas is not hostile to the oil and gas industry. That state is improving its business climate while Louisiana is making its climate more and more inhospitable for business.
Policy matter and that’s why Texas and other Gulf South states are poised to benefit more than Louisiana from the fracking and plastics boom.
https://thehayride.com/2017/06/louisiana-standing-sidelines-shale-revolution-happens/

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Pruitt Faces Early Legal Tests Over Efforts To Delay Obama-Era EPA Rules

Jun 26, 2017 | Inside EPA

By Abby Smith and Dawn Reeves

EPA is using both the Clean Air Act and the Administrative Procedure Act (APA) to delay Obama-era regulations -- a tactic to buy time for the Trump administration to rewrite the rules -- but environmentalists' challenges to those stalling tactics could be first legal tests to the bounds of EPA's authority to administratively stay its rules.
Sources say the legal challenges to EPA's efforts to delay rules governing methane emissions at oil and gas facilities, updated facility safety requirements and standards governing toxic wastewater discharges from power plants could inform the scope of authority the Trump EPA and future agencies have to delay rules through administrative tools.
Environmentalists argue that EPA Administrator Scott Pruitt has no legal basis for pausing the rules entirely, and they expect the courts to find decisively in their favor. One environmentalist attorney says the Trump administration is using these tactics because it is looking to scrap or weaken the Obama-era rules but is not yet ready to move forward or does not yet have a reasonable explanation for changing policy.
“If they want to get rid of all these protections, the easiest way to do that is to delay, and keep delaying and delaying,” the attorney says, while warning that “starts to be a slippery slope.”
Industry sources, by contrast, say the issues remain largely untested with little if any legal precedents. If the administration succeeds in expanding its authority to stay rules, those sources say, it could be a game changer.
Referencing the facility safety rule, one industry attorney says EPA is offering several different arguments to support its stay, including an alternative reading of Clean Air Act section 307(d)(7)(B), hoping the court will latch onto at least one of them. The source likened it to "throwing stuff against the wall to see what sticks."
However, the source says EPA, in this case, is choosing a legally risky path rather than vacating the rule on the grounds that it violated notice-and-comment requirements. The source says the latter path would itself be novel, but one the source views as the least legally risky.
But Ethan Shenkman, a lawyer now in private practice who served as deputy EPA general counsel and an assistant attorney general in the Obama administration, says it is not surprising the Justice Department (DOJ) is advancing new legal arguments to stay regulations.
DOJ sees its mission “always as giving the policymakers as much breathing room as possible to both choose the policy direction that the policymakers think is best, and to do so following the proper legal and administrative procedures,” he tells Inside EPA. And that mission does not vary depending on what administration is in charge or the direction it is trying to move policy.
There is an “institutional interest” that DOJ is protecting: the ability of policymakers to choose whether to continue or change a policy direction. “If the shoe were on the other foot . . . down the road some of the groups now who are challenging the government's ability to change positions and have breathing room may be taking a different tack and be in support of agency abilities to do this,” Shenkman says.
DOJ is also “playing to the desire” of judges “not to decide [cases] unless they have to,” he adds, though cautioning “there will be a limit to the patience that the courts show.”
EPA Discretion
The first decision in the pending lawsuits is likely to come from the U.S. Court of Appeals for the District of Columbia Circuit in Clean Air Council, et al. v. EPA, et al., where environmentalists are asking the court to impose a judicial stay on EPA's administrative delay of requirements of its methane new source performance standards (NSPS).
The case is now fully briefed, and observers expect the court to rule without oral argument, since environmentalists are asking the court to step in and reject EPA's stay of the rule.
Environmentalists charge EPA's reconsideration proceedings do not meet the two-part test they say air act section 307(d)(7)(B) requires, and thus the agency cannot use that provision to administratively stay the methane NSPS. A coalition of 13 states and two cities -- led by Massachusetts Attorney General Maura Healey (D) -- have intervened to back the environmental groups.
The Clean Air Act “prescribes a carefully circumscribed scope for a narrow proceeding for 'reconsideration' (with authority to impose a limited stay), which the Administrator conflates with EPA's broad rule 'revision' authority (without authority to impose a stay),” environmentalists write in a June 20 reply brief.
But EPA -- backed by several oil and gas industry groups and a several GOP-led states -- argues it has “broad discretion” to reconsider its rules and accordingly pause them, “regardless of whether the statutory criteria for when EPA is mandated to reconsider its rules are met.”
Environmentalists are confident they have the upper hand in the methane lawsuit. “EPA has an extremely weak position. . . . We think we've got them in a straight-up violation of the law,” says David Doniger of the Natural Resources Defense Council (NRDC), one of the groups bringing the suit. He says EPA has authority to revise rules through a proper rulemaking procedure but no authority to stay already-final rules during a revision.
Industry sources, however, echo EPA's argument that it has substantial discretion to choose to reconsider its own rules, and say it will likely be difficult for environmentalists to argue the court should not show the agency deference.
'Flouting the Limit'
The other case involving air act section 307, Air Alliance Houston, et al. v. EPA, et al., will center in part on the limits of EPA's authority to stay rules under the same subsection, (d)(7)(B), focusing in this instance on whether the agency can use that provision to delay rules beyond the three months specified in the statute.
Roughly a dozen environmental and public interest groups filed a June 15 petition asking the D.C. Circuit to reverse EPA's June 14 final rule delaying the Obama-era Risk Management Plan (RMP) facility accident prevention rule by 20 months. Those groups also filed a June 22 motion urging the court to judicially stay EPA's delay of the RMP rule.
Environmentalists' June 15 petition does not detail their arguments, but environmental groups' comments to Pruitt's proposal to delay the RMP rule offer a preliminary look at their claims.
In the comments, they cite a 1992 case to support their argument. In that case, NRDC v. Reilly, the D.C. Circuit struck down EPA's delay of emissions standards for radionuclides -- which the agency had justified by citing the APA and “the authority inherent to EPA's general rulemaking authority under Clean Air Act section 301(a)” to delay a rule's effective date beyond three months.
According to environmentalists' May 19 comments, the D.C. Circuit in the 1992 case “held unequivocally that 'prior to the enactment of the 1990 Amendments, the EPA had no authority to stay the effectiveness of a promulgated standard except for the single, three-month period authorized by section 307(d)(7)(B),' and it found 'the 1990 Amendments equally unambiguous' in this respect.”
Environmentalists add, “Despite all of this, and flouting the Act's plain limit on its authority, EPA is proposing to delay the [RMP rule] for 20 months based on a pending reconsideration proceeding. . . . The proposed delay for reconsideration is longer than the 3-month limit allowed and is therefore expressly foreclosed by the Clean Air Act.”
But EPA in its final rule delaying the RMP rule offers a number of rebuttals to environmentalists' claims. Predominantly, the agency distinguishes between its mandatory duty to promulgate the radionuclides standards at issue in the NRDC case and the discretionary authority under which it issued the RMP rule.
Clean Air Act section 112(r)(7)(A), under which the RMP rule was promulgated, “provides the Administrator substantial discretion” to set an effective date, EPA noted. “The statutory framework for a discretionary rule under CAA section 112(r)(7) differs greatly from the 'highly circumscribed schedule' analyzed by the NRDC court. Absent an otherwise controlling provision of the CAA, CAA section 307(d) allows EPA to set a reasonable effective date.”
But the first industry attorney says EPA is offering several different arguments to support its stay, including an alternative reading of Clean Air Act section 307(d)(7)(B), hoping the court will latch onto at least one of them.
The industry attorney suggests, as an alternative pathway, EPA could have vacated the RMP rule and re-proposed it in a way that reflected the administration's change in policy. That approach would be novel, as well, but the source says EPA already acknowledged industry's claims that there was not adequate notice-and-comment for the RMP rule and thus could have used that as grounds for vacatur.
Such a move could have bought EPA time to rewrite the RMP rule without wading into a legal battle over its authority to delay the regulation.
In doing so, EPA would essentially bypass the court, acknowledging it did not comply with the APA and vacating the RMP rule to redo it in compliance with the statute. “It is novel in that sense, but this is a novel time,” the source says. “This is a new administration with a vastly different sense, trying to take a 180 from the last administration.”
Four-Factor Test
Beyond the air act suits, environmentalists' challenge to EPA's indefinite delay of the effluent limitation guideline (ELG) rule, Clean Water Action, et al. v. Pruitt, pending in federal district court in Washington, D.C., could be a first test to the authority of EPA to postpone rules using APA section 705.
That provision allows agencies to delay rules under judicial review if “justice requires,” but one industry source says it has scant legal precedent. There are only two prior rulings addressing the matter, and one of those -- a 1996 ruling from the D.C. Circuit -- is unpublished and therefore unprecedential.
In that case, Safety Kleen Corp. v. EPA, the court held that agencies can only exercise section 705 authority to delay a rule that has not yet gone into effect. APA section 705 “permits an agency to postpone the effective date of a not yet effective rule, pending judicial review,” the per curiam opinion reads. “It does not permit the agency to suspend without notice and comment a promulgated rule, as respondent has attempted to do here.”
Environmentalists in the ELG rule suit, however, are challenging EPA's delay of the rule citing a 2012 decision in the D.C. district court in Sierra Club v. Jackson, which blocked EPA efforts to delay its commercial and industrial solid waste incineration air toxics rule, holding that an agency seeking to administratively stay a rule has to apply the same four-factor test needed to win a judicial stay.
To meet that legal test, petitioners must typically prove: that they are likely to succeed on the merits; that the rule will cause “irreparable” harm; that a stay is in the public interest; and that a stay would not harm other parties to the case.
But EPA does not justify its decision to stay the ELG rule using the four-factor test. Rather, the agency's brief, five-page notice says the delay is necessary “[i]n light of the capital expenditures that facilities incurring costs under the Rule will need to undertake in order to meet the compliance dates.” EPA adds the delay will “preserve the regulatory status quo . . . while the litigation is pending and the reconsideration is underway.”
A third industry source says the Sierra Club ruling has not been used as precedent since it was decided. The source adds that DOJ at the time had been under pressure to appeal the decision but opted not to, in part out of concern an appellate court ruling against them could produce unfavorable binding precedent. Instead, DOJ indicated it would not consider the ruling precedential.
That source says the Sierra Club opinion was “wrong,” and recalls meetings with DOJ at the time about the “ridiculous” opinion that would force “EPA to say in essence [its own rule] would not survive judicial review. An agency is never going to say that.”
In the briefs thus far in the case, DOJ has not addressed the merits of environmentalists' arguments, instead asking the court to dismiss the case for incorrect jurisdiction. DOJ argues it should be heard in the 5th Circuit alongside litigation over the merits of the ELG rule.
NRDC's Doniger pushes back on the idea the Sierra Club ruling sets a “ridiculous” precedent for EPA to meet. “I don't know who is saying the agency should just be able to do these stays without considering the harms being caused to the public and how it balances against the harm [of] enforcing a rule,” he tells Inside EPA. And he dismisses the notion that EPA should not have to find fault in its own rules to issue a delay.
“If there is not something wrong with the rule, why in the heck are you changing it?” Doniger says. “The reason you are changing a rule is in response to a petition, and you thought the petitioner's petition had some merit.”
Doniger adds: “It is not just enough that companies have to comply and pay money, though that is probably how Pruitt thinks. But the rule has got to have something wrong either about the interpretation of the law or the application of facts to the law” for the agency to choose to reconsider and stay a regulation.
https://insideepa.com/daily-news/pruitt-faces-early-legal-tests-over-efforts-delay-obama-era-epa-rules

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Three Suits Test Scope Of EPA Authority To Administratively Stay Rules

Jun 26, 2017 | Inside EPA

Three lawsuits in which environmentalists are challenging EPA administrative delays of Obama-era regulations are likely to provide the first legal tests of the agency's authority to stay its rules using administrative tools -- as EPA's use of the statutes has little prior legal precedent and could be legally risky.
In the months since EPA Administrator Scott Pruitt took office, he has issued administrative stays of a host of Obama-era rules, either in full or in part, while the agency reconsiders them -- sometimes through formal reconsideration proceedings under the Clean Air Act and other times through a broader review indicating a change in policy position.
Three of those stays are being challenged in suits that address EPA's authority under two separate statutes: Clean Air Act section 307(d)(7)(B), which gives EPA the power to temporarily pause requirements while it reconsiders its rules, and APA section 705, which allows federal agencies authority to delay regulations if “justice requires” pending litigation.
The agency's use of air act section 307(d)(7)(B) is at the heart of two of the suits. Environmentalists in Clean Air Council, et. al. v. EPA, et al., pending in the U.S. Court of Appeals for the District of Columbia Circuit are challenging EPA's 90-day stay of several requirements in the Obama-era new source performance standards (NSPS) for oil and gas sources, a rule that sets first-time limits on emissions of the potent greenhouse gas methane from the oil and gas sector.
The core legal back-and-forth in that case deals with the level of discretion EPA has to reconsider its rules. DOJ, on behalf of EPA, is arguing the agency has “broad” discretion, but environmentalists charge the court should show EPA “limited” deference and argue the provisions it has chosen to reconsider do not meet the statutory test under air act section 307(d)(7)(B) for such proceedings.
In the other case focused in part on air act section 307(d)(7)(B), environmental and labor groups are challenging EPA's delay of its Risk Management Plan (RMP) facility accident prevention rule. The Jan. 13 RMP rule has been delayed three times -- once by the Jan. 20 memo from White House Chief of Staff Reince Priebus that delayed Obama rules that had been signed but not yet promulgated, again by Pruitt in March for three months under air act section 307(d)(7)(B) and then for an additional 20 months in a June 14 final rule.
Environmental and labor groups, in their suit pending in the D.C. Circuit, are contesting the 20-month stay, arguing the agency's authority to delay rules during reconsideration proceedings is limited to the three-month delay allowed by air act section 307(d)(7)(B).
And in the federal district court in Washington, D.C., environmentalists are challenging EPA's indefinite delay of its Clean Water Act power plant effluent limitation guideline (ELG) rule, this time under section 705 of the APA.
Environmentalists charge EPA's notice pausing the ELG rule does not address the four-part legal test required to win a judicial stay -- which they argue prior case law requires EPA to also meet should it delay a rule under APA section 705.
Read more in our broader story about the interplay among the three cases as they test EPA's authority in what one industry source calls “a novel time.” That source says, “This is a new administration with a vastly different sense, trying to take a 180 from the last administration.”
A breakdown of the three lawsuits is below:
Clean Air Council, et al. v. EPA, et al. in the D.C. Circuit
What the case is challenging: EPA's 90-day delay of several requirements of the Obama-era new source performance standards (NSPS) setting first-time limits on emissions of the potent greenhouse gas methane from oil and gas sources
The statute at issue: Clean Air Act section 307(d)(7)(B)
The core legal argument: Environmentalists say EPA's stay of the methane NSPS requirements is illegal because the agency's reconsideration proceedings are not valid. They argue the provisions EPA has chosen for reconsideration do not qualify for such proceedings under air act section 307(d)(7)(B). Environmentalists say the section sets up a two-part test provisions must meet to be eligible for reconsideration proceedings: that it was “impracticable” to raise objections during the comment period and that the provisions are “of central relevance” to the outcome of the rule. They argue the provisions EPA has chosen fail both tests.
EPA's defense: The Department of Justice (DOJ), on behalf of EPA, argues in its brief the agency has “broad discretion” to reconsider its rules, “regardless of whether the statutory criteria for when EPA is mandated to reconsider its rules are met.”
The status of the case: Fully briefed. The court is expected to issue a ruling without oral argument.
Air Alliance Houston, et al. v. EPA, et al. in the D.C. Circuit
What the case is challenging: EPA's June 14 final rule delaying the Obama-era Risk Management Plan (RMP) facility accident prevention rule
The statute at issue: Clean Air Act section 307(d)(7)(B)
The core legal argument: Environmentalists have not yet submitted a brief laying out their legal argument, but their May 19 comments to EPA's proposal to delay the RMP rule offer a preview. They argue in part EPA cannot use reconsideration proceedings under air act section 307(d)(7)(B) to stay a rule longer than the three-month limit outlined in the statute. To support their argument, they cite the 1992 case NRDC v. Reilly, in which the D.C. Circuit struck down EPA's delay of emissions standards for radionuclides. Environmentalists say the court in that case held EPA “has no authority to stay the effectiveness of a promulgated standard” beyond the three-month timeframe authorized by section 307(d)(7)(B).
EPA's defense: DOJ has not yet filed in this case, but EPA in its final rule delaying the RMP rule draws a distinction between its mandatory duty to promulgate the radionuclides standards at issue in the NRDC case and the discretionary authority it used to issue the RMP rule. The latter gives EPA “substantial discretion” in setting an effective date for a rule, EPA says.
The status of the case: Environmentalists and labor groups filed their initial petition for review June 15. On June 22, those groups filed urging the D.C. Circuit to judicially stay EPA's rule delaying the RMP rule. A briefing schedule has not yet been set.
Clean Water Action, et al. v. Pruitt in the D.C. district court
What the case is challenging: EPA's notice delaying indefinitely the Obama-era Clean Water Act power plant effluent limitation guideline (ELG) rule
The statute at issue: APA section 705
The core legal argument: Environmentalists cite a 2012 D.C. district court case Sierra Club v. Jackson, in which the court blocked EPA efforts to delay its commercial and industrial solid waste incineration air toxics rule, holding that an agency seeking to administratively stay a rule under APA section 705 has to apply the four-factor test needed to win a judicial stay. That test typically requires petitioners to prove: that they are likely to win on the merits; that they face “irreparable” harm; that a stay is in the public interest; and that other parties to the case are not harmed by a stay. Environmentalists argue EPA's stay of the ELG rule is illegal because it did not address the four-factor test.
https://insideepa.com/daily-news/three-suits-test-scope-epa-authority-administratively-stay-rules
EPA's defense: DOJ has not yet addressed the merits of environmentalists' arguments. In a June 13 brief, DOJ urges the court to dismiss the case for incorrect jurisdiction, arguing it should instead be heard in the 5th Circuit alongside litigation over the merits of the ELG rule.
The status of the case: The court on June 26 issued an order rejecting EPA's motion to dismiss the case, saying the time is not yet right to decide whether the suit is valid and that EPA should make its arguments in response to environmentalists' motion for summary judgment. Under the schedule set by the court, briefing on summary judgment will finish by Sept. 11, meaning a decision would not likely come for weeks or months later.
https://insideepa.com/daily-news/three-suits-test-scope-epa-authority-administratively-stay-rules

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Asserting 'Dominance,' Trump Seeks Boost for U.S. Energy Exports

Jun 26, 2017 | Reuters

By Roberta Rampton

President Donald Trump on Thursday will lay out his plan for reducing regulations to boost already-abundant U.S. production of oil, natural gas and coal and export it around the world, creating American jobs and helping allies.
Trump will deliver an address on his administration's new mantra of "energy dominance" at the Energy Department, officials told reporters. They declined to give details on how he would tweak existing regulations that have not stopped a surge in exports.
"We’ve gone from the age of scarcity now to the age of abundance when it comes to American energy," Mike Catanzaro, a White House energy policy aide, told reporters.
"We want to use those abundant resources for good here at home and for good abroad as well," Catanzaro said.
Trump's speech comes a week before he meets in Warsaw with leaders of a dozen central and eastern European nations who are eager to see more U.S. liquefied natural gas (LNG) in their markets as an alternative to Russian gas.
Trump is stopping at the summit on his way to the G20 in Hamburg, Germany, where he is expected to meet face-to-face for the first time in his presidency with Russian President Vladimir Putin.
Shipments of LNG will play a big part in the "energy dominance" strategy, Energy Secretary Rick Perry told reporters, but so will exports of coal and U.S. technology that helps reduce emissions from coal-fired plants, he said.
Perry said he discussed the potential for U.S. coal exports to Ukraine with President Petro Poroshenko during his visit to Washington last week.
The Trump administration believes in an "all-of-the-above" approach to energy, Perry said - borrowing the energy catch-phrase of the Obama administration.
U.S. domestic energy prices have plunged in recent years because of the natural gas boom, crowding out competing sources of power, including coal and nuclear. Dozens of nuclear power reactors are in danger of shutting down over the next several years as a result.
The Trump administration wants to make sure the United States remains "technologically and economically engaged" in the nuclear industry, Perry said. "If we do not, then China and Russia will fill that void," he said.
But he said the administration would not be "wildly supportive" of subsidizing any sectors of the energy industry. Perry said energy supports in the tax code would be examined as the administration and Congress look at tax reform later this year.
"I think we’ll have a good healthy conversation about the energy sector and tax incentives, subsidies - all of that needs to be on the table and we need to have a conversation about it," Perry said.
https://www.reuters.com/article/us-usa-trump-energy-idUSKBN19I048

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White House Talks Energy as Health Care Vote Looms

Jun 26, 2017 | Politico

By Andrew Restuccia and Josh Dawsey

At the Capitol, senators are deciding the fate of President Donald Trump’s biggest policy priority: repealing Obamacare. But at the other end of Pennsylvania Avenue, it’s “Energy Week.”
While Senate Majority Leader Mitch McConnell tries to cobble together enough votes to pass a health care bill, Trump is slated to tout U.S. energy “dominance” at a pair of events at the White House and Energy Department with governors, tribal leaders and members of his Cabinet.
The disconnect between the message coming out of the White House and the news of the week has been a recurring theme as the Russia probe has escalated to encompass questions of whether the president himself may have tried to obstruct a federal inquiry into Russian efforts to meddle in the 2016 election.
“Infrastructure Week” collided with former FBI Director James Comey’s testimony before the Senate Intelligence Committee about his abrupt firing. “Jobs Week” was interrupted by a shooting at a congressional baseball practice, a day after Attorney General Jeff Sessions testified before the Senate. And last week’s focus on technology was overshadowed by Trump’s admission that he never taped conversations with Comey in the White House, despite suggesting on Twitter that he had.
White House officials acknowledge privately that their policy messages haven’t been able to compete with the flood of news about the Russia investigation — in part, because it’s nearly impossible to keep the president himself on message. Trump has continued to blast out missives about the Russia “witch hunt” and his myriad frustrations, including ongoing challenges to his travel ban, distracting from other events at the White House. The president talks about the Russia investigation more than any other topic, White House aides and advisers said.
Asked about potential themes for upcoming weeks, one senior Trump aide laughed and said, “Whatever he tweets.”
But Trump aides nevertheless say they see the policy-themed weeks as an essential part of a broader effort to ensure that the Trump administration communicates a more consistent public message — and to give off the impression to core Trump voters that the president is busy trying to do the things he promised during his campaign.
Asked for comment, White House spokeswoman Natalie Strom referred POLITICO to a previous statement in which she criticized the media for not covering Trump’s policy moves, adding that the president will “continue to lead and draw attention to the issues that working Americans actually care about.”
The president has scheduled rallies alongside events related to the White House’s chosen themes, including one last week in Cedar Rapids, Iowa — his first stop west of the Mississippi since winning the election in November. But the evening rally, during which Trump revisited his familiar themes about fake news and his surprise election victory, drowned out coverage of his afternoon stop at a community college to spotlight agricultural technology.
Organized by chief of staff Reince Priebus with the help of senior counselor Kellyanne Conway, the policy weeks were intended as a response to the president’s growing complaints about his press coverage and the attention the Russia revelations were receiving. The White House conceived of the themed weeks in early May. There was growing frustration in the White House that the president’s schedule seemed to be in a constant state of upheaval — with last-minute changes and little direction. The idea of the weekly themes, one senior official said, was to attempt to harness the president’s ability to connect “into something that actually helps us.”
By flooding the president’s schedule with wonky events, the White House has hoped to counter the narrative that the president isn’t getting anything done, as well as offer the press something else to talk about besides the Russia probe.
“We wanted to force the media to ignore stuff,” said one White House official.
White House aides began planning for Trump’s energy events last month, and people involved in the preparation said they couldn’t have anticipated that it would overlap with crucial talks about the health care bill.
And officials bristled at the notion that they’re ignoring the health care bill. “We’re just as focused on health care as we are on” energy, another White House official said.
Wednesday’s “Energy Week” event at the White House will focus on local and state energy issues. Maine Gov. Paul LePage and Nebraska Gov. Pete Ricketts are expected to attend. Trump’s speech at the Energy Department on Thursday will touch on the importance of producing oil and natural gas in the United States, as well as the potential to expand U.S. energy exports. Energy Secretary Rick Perry, Environmental Protection Agency Administrator Scott Pruitt and Interior Secretary Ryan Zinke will all participate in the Energy Department event, the White House said.
Energy is also expected be a major topic of discussion during the president’s Monday meeting with Indian Prime Minister Narendra Modi, according to a White House official.
But “Energy Week” isn’t expected to feature any major events outside of Washington, which could distract from the Senate health care debate. White House aides had been tentatively planning for Trump to deliver an energy speech at a liquefied natural gas facility in Louisiana this week. But the event was nixed because of a tropical storm that battered Louisiana’s coast, according to White House officials, who expect Trump to visit the facility at a later date.
Past White Houses employed similar policy-focused strategies, with the goal of driving home the point that the president is keeping his head down and doing the work of the American people. During a series of damaging scandals, former President Bill Clinton filled his schedule with policy-related events.
“Our strategy was essentially a ‘Go local’ one. It was about taking the president’s message directly to the people in key localities and states, including areas where key members of Congress were from,” said George W. Bush administration press secretary Scott McClellan. “Part of it was designed to get around the national media filter, but it was all about building public support to get the president’s legislative priorities passed.”
But McClellan warned that the strategy “requires message discipline and strategic focus to be successful, neither of which we have seen much of from this White House.”
So far, the administration’s bid to construct an alternative reality divorced from the Russia investigations and the president’s uncertain legislative agenda hasn’t had much success. The administration has even faced ridicule for its look-over-here strategy.
“Just landed from China, trying to catch up…. How did ‘infrastructure week’ go?” Goldman Sachs CEO Lloyd Blankfein tweeted after the White House’s infrastructure-themed week failed to compete with Comey’s damaging testimony and the president’s angry, off-message tweets.
The lack of coverage of the policy weeks also gives the White House a new attack line: The media isn’t paying attention.
Conway has repeatedly criticized the press for not focusing enough on Trump’s policy initiatives. She complained in a television interview earlier this month about the media’s “obsession with covering everything he says on Twitter and very little what he does as president.”
But keeping the public and media’s attention on policy is also part of the White House’s job, strategists say.
“Policy weeks or theme weeks are a great way to focus the attention of everyone in the administration and beyond on a particularly critical challenge facing the nation,” said Republican pollster Whit Ayres. A president’s success in delivering that message to voters, he added, “depends on the administration, and the focus that the administration has on that issue.”
http://www.politico.com/interactives/2017/trump-health-care-policy-energy-week/

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Perry: Trump Wants to Use Energy for ‘Global Leadership’

Jun 27, 2017 | The Hill - E2 Wire

By Timothy Cama

President Trump wants the United States to use its energy as a geopolitical tool for influence and leadership, Energy Secretary Rick Perry said.
Perry spoke with reporters Monday about how he, Trump and the administration see their stated goal of “energy dominance,” in which the U.S. goes beyond energy independence and starts actively competing on multiple global stages through self-sufficiency and exports of natural gas, oil, coal and other forms of energy.
Perry’s briefing at the White House came at the beginning of the Trump administration’s self-proclaimed “Energy Week,” in which officials are trying to highlight the president’s energy agenda thus far and his plans for the future.
Like Infrastructure Week and Technology Week before it, the attempt to focus on what the administration sees as positive policy accomplishments comes while national headlines are dominated by other stories.
The Congressional Budget Office reported Monday that the Senate’s healthcare reform bill, which Trump supports and is set for a vote later this week, would leave 22 million more people uninsured over the next decade.
Nonetheless, through a series of events this week, the Trump administration wants the focus to be on energy.
“President Trump wants America to achieve energy dominance, utilizing our abundant domestic energy resources for good, both here at home and abroad,” Perry said.
“An energy-dominant America means a self-reliant, a secure nation, free from geopolitical turmoil of other nations who seek to use energy as an economic weapon. An energy-dominant America will export to markets around the world, increasing our global leadership and influence.”
The main focus thus far toward the energy dominance goal has been to roll back regulations and other policies, largely written by the Obama administration, that the administration thinks stand in the way of the production and use of domestic fossil fuels.
Across the administration, that’s included rules on oil and natural gas drilling, restrictions on coal mining on federal land, limits on greenhouse gas emissions from power plants and exiting the Paris climate change agreement.
“For years, we have over-regulated that sector, mostly by Washington politicians and bureaucrats who knew they knew best,” Perry said. “The lecturing is over. It is now time to listen.”
Increasing liquefied natural gas (LNG) exports is a key piece of the agenda. Only one facility in the lower 48 states — Cheniere Energy Inc.’s Sabina Pass facility on the Texas-Louisiana border — is exporting LNG, but the administration wants to get more exporting facilities online.
Trump said Monday after meeting with Indian President Narendra Modi that he wants to export LNG to India as well.
“We’re also looking forward to exporting more American energy to India as your economy grows, including major long-term contracts to purchase American natural gas, which are right now being negotiated, and we will sign them. Trying to get the price up a little bit,” he said.
But Perry cautioned that, despite the fossil fuel focus and Trump’s Paris withdrawal, the administration still prioritizes clean energy.
“The binary choice between being pro-economy and pro-environment that was perpetuated by the Obama administration, it set up a false argument. We can do good for both, and we will,” he said.
He said the fact that the U.S. has been a world leader in reducing greenhouse gas emissions — mostly due to cheap natural gas replacing coal for electricity — shows that the country can cut emissions without Paris or similar policies.
“Instead of preaching about clean energy, this administration will act upon it,” he said.
Perry will speak about Trump’s energy agenda Tuesday at an Energy Information Administration event.
He will also participate in a panel with Trump and other top administration officials on “Energy Dominance” at the Energy Department’s headquarters Thursday, but it will be closed to the public.
On Wednesday, Trump will host governors and leaders of American Indian tribes to talk about local and state involvement in energy policy.
http://thehill.com/policy/energy-environment/339548-perry-trump-wants-to-use-energy-for-global-leadership-and-influence

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Trump’s Anti-Nafta Stance Is on a Collision Course with Natural Gas

Jun 26, 2017 | The New York Times

By Clifford Krauss and Azam Ahmed

Of all the industries thrown into question by President Trump’s promise to upend free trade with Mexico, natural gas is easily one of the most important.
More than a quarter of Mexico’s electricity is powered by American natural gas, leaving it especially vulnerable to any upheavals from a trade battle with the United States.
But selling natural gas to Mexico is also a godsend for the American energy industry, which is lobbying the White House to emphasize just how crucial the relationship with Mexico is.
With billions of dollars at stake and zigzagging administration stances on trade, American energy companies are taking no chances. They are also setting their sights on an old friend in a unique position to help: Rick Perry, the former governor of Texas, who recently served on the board of a pipeline company that ships natural gas to Mexico and who is now Mr. Trump’s energy secretary.Continue reading the main story
“What we will do is reach out to our own Texan, Energy Secretary Rick Perry, and bend his ear,” said Steven H. Pruett, chief executive of Elevation Resources, a Texas oil and gas company. “And say, ‘Please, please get the Trump administration to back off of the Nafta cancellation rhetoric and enable us to continue to have the economic boom that natural gas has created for Texas.’”
Under the North American Free Trade Agreement, which Mr. Trump has threatened to terminate unless he can get a “fair deal” for the United States, the authorization of natural gas exports is virtually automatic.
But if the United States pulls out of the agreement, it will be up to the Energy Department to approve future gas exports considered to be in the national interest.
That places Mr. Perry in a pivotal role at a tense time, and there is good reason to consider him a friend of the industry. As governor of Texas, he defended contentious practices like fracking to promote his state’s oil production and natural gas exports. Under his watch, production of natural gas in the state soared 50 percent.
After he left office, Mr. Perry joined the board of Energy Transfer Partners, a company that has completed four gas pipelines to Mexico in the last two years.
And when he ran for president in 2016, the company’s chief executive became the single biggest contributor to Mr. Perry’s ill-fated campaign.
Kelcy Warren, Energy Transfer’s chief executive, donated more than $6 million of the $16.7 million raised by the 2016 Perry presidential campaign, according to Federal Election Commission data compiled by the Center for Responsive Politics. Most of the money was then returned to Mr. Warren when Mr. Perry dropped out of the race.
“Rick Perry is a really good friend of mine and he is a bright guy,” Mr. Warren said. “He understands the energy business quite well, and it gives me great comfort that he is in that position.”
Last month, the Trump administration gave Congress official notice that it planned to renegotiate Nafta, a pact that the president has called “the worst trade deal ever.”
Then this month, the American Petroleum Institute, one of the strongest lobbies in Washington, made its position unmistakably clear in an open letter to the administration stating that “the current Nafta agreement works for the oil and gas industry.”
Mr. Perry says he understands the symbiotic nature of the relationship between Mexico and American energy companies, and he has promised to do what he can to maintain it. Even in the unlikely event that Nafta could not be renegotiated, he said, he would fully support continuing the energy trade.
“I see this as an opportunity to allow an American natural resource to help bolster both countries’ economies,” he said. “The overall goal of the Trump administration is to sell what Americans make to bolster this economy. If you are selling it to a partner, a neighbor, even better.”
Mr. Perry said his stance was not clouded by his former job on the board of Energy Transfer. Having already passed through the revolving door between government and the energy industry, Mr. Perry said, he was in no way conflicted about his new role.
“I work for Donald Trump and I work for the American people,” he said.
Mr. Trump’s threats against Mexico and shifting statements about withdrawing from Nafta have prompted some worry, however, persuading Mexican officials to begin exploring options in the event of a cutoff.
“In the context of an escalating trade war, a cutoff of gas by one side or the other is possible,” said Kevin Book, managing director of ClearView Energy Partners, an energy research firm.
Such a move, according to Mr. Book, would summon what he calls a “mutually assured destruction scenario,” in which American companies suffer a serious loss of income and Mexico faces an energy shortage that could devastate the most basic functions of its capital, Mexico City.
The impact on the United States could also hit home for some of the most important members of Mr. Trump’s cabinet and support base. With American gas exports to Mexico expected to double by 2019, most gas will come from Texas, a vital Republican stronghold that is the home state of both Mr. Perry and Secretary of State Rex W. Tillerson.
Mr. Trump’s threats have “created some worry on Mexico’s part, and as a result Mexico has looked at its backups and alternatives,” said Carlos Pascual, the former American ambassador to Mexico and a senior vice president for IHS Global Energy. “But the first screams that would go up if the U.S. were to cut off natural gas shipments to Mexico would come from the oil and gas producers in Texas.”
At least 17 pipelines currently carry more than four billion cubic feet of natural gas a day to Mexico, with four additional cross-border pipelines to be completed over the next two years and many more in the planning phase.
Expanding natural gas sales to Mexico has become increasingly important because the glut of production in the United States far exceeds domestic demand. In short, to keep the price of natural gas from collapsing, American producers need Mexico, their largest customer.
For Mexico, natural gas is a linchpin of its future. It will become the major source of the nation’s power in the next decade, a crucial resource to generate electricity for citizens and industries. Mexico’s Energy Ministry announced a five-year plan in 2015 to expand the country’s pipeline network to accommodate increased imports of gas.
With American natural gas both cheap and readily available, Mexican oil executives have set aside plans to produce their own gas from their country’s shale fields. That has left some worried that if the trade relationship falters, Mexico could suddenly be on shaky ground. Mexican officials have begun to explore importing liquid natural gas from countries like Peru.
Publicly, however, officials and executives in Mexico have been cautiously optimistic about the future of the energy trade. In an appearance at Rice University last month, José Antonio González, chief executive of the national oil company Petróleos Mexicanos, said he felt confident that Mr. Trump’s trade policies would not interrupt the flow of oil and gas between the nations.
“Trade is a win-win, especially in energy,” he said with a smile. “In the case of Mexico and United States it is clearly complementary.”
Mr. Perry largely agreed, acknowledging the importance of the natural gas trade to American companies and their efforts to protect it.
“Everybody in the private sector is going to look after their interests and their stockholders’ interests. I get that, and that’s fine and good,” he said. “The Trump administration is going to make decisions on how to sell American products, create American jobs, and if that helps bolster the relationship with Mexico and Canada in a North America energy strategy, then there is a lot of reason to celebrate.”
Correction: June 26, 2017
A picture caption with an earlier version of this article misstated the share of Mexico’s electricity that is generated using American natural gas. As the article correctly stated, it is more than one-quarter, not one-half.
https://www.nytimes.com/2017/06/26/world/americas/rick-perry-mexico-gas-energy-industry-electricity-natural-gas.html?rref=collection%2Fsectioncollection%2Fbusiness-energy-environment&action=click&contentCollection=energy-environment&region=stream&mod&_r=0

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Committee to Vote on 8 Bills

Jun 27, 2017 | E&E Daily

By Sam Mintz and Sean Reilly

The House Energy and Commerce Committee will look to advance eight bills tomorrow, including several significant pieces of legislation on nuclear waste, ozone standards, brownfields and pipeline permitting.
H.R. 3053 is Environment Subcommittee Chairman Rep. John Shimkus' (R-Ill.) effort to break an ongoing stalemate over nuclear waste by reviving the stalled Yucca Mountain repository in Nevada and moving to authorize private interim storage facilities.
It has been opposed by members of Nevada's congressional delegation, who say it would be harmful to the health and safety of Nevadans, and it differs significantly from pending legislation on nuclear waste by a bipartisan quartet in the Senate (E&E Daily, June 8).
H.R. 806, the "Ozone Standards Implementation Act," would roll back U.S. EPA attainment designations for its latest ozone air quality benchmark — set two years ago — until 2025.
The agency had originally been scheduled to make those designations by this October, but agency Administrator Scott Pruitt recently imposed a one-year delay, citing the need for more information.
Rep. Pete Olson (R-Texas), the bill's sponsor, maintains that the lengthier postponement is still needed, given that some parts of the country are still out of compliance with the 2008 standard of 75 parts per billion. The more stringent threshold established in 2015 is 70 ppb.
Olson's bill would also rewrite a key tenet of the Clean Air Act by extending the review cycle of EPA's standards for ozone and other "criteria pollutants" from once every five years to once every decade. Olson had introduced a similar measure, H.R. 4775, last year during the 114th Congress. After winning House approval, the measure died in the Senate following an Obama administration veto threat.
Another bill, Rep. Markwayne Mullin's (R-Okla.) H.R. 2883, would remove the "presidential permit" requirement for cross-border pipelines and electricity transmission projects, instead transferring permitting authority to the Federal Energy Regulatory Commission and the Department of Energy, respectively.
The presidential permit authority was used by President Obama to block, and President Trump to approve, the Keystone XL pipeline.
The other pieces of legislation up for a committee vote are:H.R. 2910, from Rep. Bill Flores (R-Texas), which would change how agencies interact during pipeline permitting, giving FERC more authority and allowing it to impose timelines on other federal and state agencies.H.R. 3043, from Rep. Cathy McMorris Rodgers (R-Wash.), which would make FERC the lead agency for permitting hydropower projects and give it the ability to extend permits and construction deadlines.H.R. 2786, from Rep. Richard Hudson (R-N.C.), which would promote the development of small conduit hydropower facilities.H.R. 3050, from Rep. Fred Upton (R-Mich.), which would enhance energy emergency planning requirements for states.H.R. 3017, from Rep. David McKinley (R-W.Va.), which would reauthorize EPA's brownfields program and increase the grant size per site. The Senate Environment and Public Works Committee is also voting on brownfields legislation today (see related story).
All of the bills can be moved to the House floor without the support of Democrats, who have objected to the process used by the committee's majority Republicans in recent weeks (E&E Daily, June 23).
Schedule: The markup is Wednesday, June 28, at 10 a.m. in 2123 Rayburn.
https://www.eenews.net/eedaily/2017/06/27/stories/1060056617

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EPA Seeks New Science Advisors, But Delay May Halt CASAC In Fall

Jun 26, 2017 | Inside EPA

By Maria Hegstad

EPA is poised to call for new experts to join two of its advisory committees, the Clean Air Scientific Advisory Committee (CASAC) and Science Advisory Board (SAB), though the nearly two-month delay in doing so may mean that CASAC, which reviews the science underlying EPA's air quality standards, will be without new members before current members leave in the fall, effectively grinding that group's work to a halt.
In a notice scheduled to publish in the Federal Register June 27, EPA requests nominations of experts to serve on the two congressionally mandated EPA advisory committees.
But the notice is about two months late -- calls for nominations for new members for the two have run in April for the past nine years -- raising concern that the smaller CASAC, in particular, may be unable to operate when the term of its chairman expires Sept. 30.
Should the agency seek to keep the panel running without its full compliment of members, it could pose a test for EPA Administrator Scott Pruitt and some of his supporters, including Sen. James Inhofe (R-OK), who in the past have criticized the agency for allegedly flouting CASAC rules.
The delay in seeking nominations for new members comes on the heels of EPA's surprising decisions not to renew the memberships of half the members of the Board of Scientific Counselors (BOSC) -- another EPA advisory group that reviews EPA's research agenda -- when their terms expired and to cancel all remaining BOSC meetings in fiscal year 2017.
Of the BOSC members, nine were members whose first term was expiring, but who had expected their membership to extend to a second three-year term, as generally happens. Instead, their terms were not renewed, and an EPA spokesman indicated that Administrator Scott Pruitt sought more members on the advisory committees who were more in tune with the concerns of industry and other regulated entities.
EPA released a Federal Register notice last month calling for nominations for new BOSC members, with a July 21 deadline.
The latest Federal Register notice also starts a multi-month process, where SAB staff review nominees' qualifications, availability and possibility for conflict of interest. EPA will seek public comment on the list of nominees before the SAB staff director submits recommendations to the administrator's office.
Agency sources have indicated they expect Richard Yamada, the mathematician recently appointed as the new deputy in EPA's research office, to have input in the final list of nominees sent to Pruitt for his consideration.
SAB, which is larger than both BOSC and CASAC, is expected to be less disrupted by the delay in seeking new members. It also has a number of meetings scheduled throughout the summer, including two meetings of subcommittees scheduled this week. SAB, established by the 1978 Environmental Research, Development, and Demonstration Authorization Act, reviews the science underlying a host of agency policies, while CASAC assesses the science that guides development of air quality standards.
"The SAB Staff Office reviews qualifications of nominees to assess whether they have the scientific education, training, and experience to evaluate basic and applied science issues addressed by the advisory committees. The Staff Office looks for nominees who have distinguished themselves professionally and who will be available to invest the time and effort in providing advice and recommendations to EPA. The Staff Office consults with the Agency and current members of the SAB, CASAC and [Advisory Council on Clean Air Compliance Analysis, another advisory panel SAB staff manages] in this process," SAB's website states.
CASAC More Affected
In part because of its small size, CASAC will be more affected than SAB if it does not have a full complement of appointees when the next terms expire in September, though both CASAC and SAB will lose their chairmen to term limits.
SAB's charter states that it will have "about 45 members," but does not set a strict minimum or maximum. Some 15 members of the current 47-member SAB have terms expiring that day, with six of these first-term members eligible for reappointment.
CASAC also faces statutory requirements regarding its membership. Per direction in the Clean Air Act section 109(d), CASAC's executive body has seven members, and the panel must include individuals representing a state air pollution agency, the National Academy of Sciences (NAS) and a medical doctor.
At present, two of those roles are filled by the CASAC chairman, Ana Diez Roux, who is both a medical doctor and an NAS member. She is also the only member of that 7-member panel with a term expiring in September, according to a database of federal advisory committees operated by the General Services Administration. The expiration of her term means that CASAC cannot operate by statute until an appointee representing those qualifications takes her seat.
Some critics have questioned in the past whether CASAC has operated outside of these requirements, with Inhofe and various conservative groups arguing that EPA includes state representatives aligned with its perspectives on air quality issues.
They argued that CASAC state representatives are often from the Northeast or California, leaving out Western states which face higher levels of background ozone that make it harder for them to achieve federal air quality standards for ozone. Similarly, Inhofe and one such group also argued in 2015 that CASAC was operating without an NAS member.
EPA responded to Inhofe's letter in February 2016, explaining that there are more considerations than geography in determining who to seat on the CASAC. Further, “there is and always has been at least one member from the National Academies on the CASAC,” SAB Staff Director Chris Zarba wrote Inhofe in a Feb. 25, 2016 reply.
With the start of the nomination process delayed, it seems unlikely that SAB staff will be able to have new members in place using the usual process when the next group of SAB and CASAC members' terms expire on Sept. 30.
"By the normal cycle of this process, EPA should already have published a Federal Register notice on appointments and reappointments," Terry Yosie, who served as SAB staff director during the Ronald Reagan and George H.W. Bush administrations, told Inside EPA in May. "That notice is late. It's held in the administrator's office."
The latest Federal Register notice opens a 30-day nomination period to collect names of potential new CASAC and SAB members. The notice indicates that EPA's SAB office is particularly seeking “nominations of experts to serve on the CASAC who are physicians and members of [NAS] with expertise in the health effects of air pollution … especially ... scientists with expertise described above who have knowledge and experience in air quality relating to criteria pollutants (ozone, particulate matter, carbon monoxide, nitrogen oxides, sulfur oxides, and lead).”
The notice explains that for SAB, the staff office is seeking experts “in the following disciplines as they relate to human health and the environment: analytical chemistry; benefit-cost analysis; causal inference; complex systems; ecological sciences and ecological assessment; economics; engineering; geochemistry; health sciences; hydrology; hydrogeology; medicine; microbiology; modeling; pediatrics; public health; risk assessment; social, behavioral and decision sciences; statistics; toxicology, and uncertainty analysis.”
Beyond these disciplines, the notice adds that staff is “especially interested in scientists in the disciplines described above who have knowledge and experience in air quality; agricultural sciences; atmospheric sciences; benefit-cost analysis; complex systems; drinking water; energy and the environment; epidemiological risk analyses; water quality; water quantity and reuse; ecosystem services; community environmental health; sustainability; chemical safety; green chemistry; homeland security; uncertainty analysis; and waste management.”
The notice adds that in addition to needing recommendations for new members of the chartered SAB, it is also seeking names of experts to serve on six standing SAB subcommittees: the Chemical Assessment Advisory Committee, the Drinking Water Committee, the Ecological Processes and Effects Committee, the Environmental Economics Advisory Committee, the Environmental Engineering Committee and the Radiation Advisory Committee.
https://insideepa.com/daily-news/epa-seeks-new-science-advisors-delay-may-halt-casac-fall

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High Court Declines To Hear Suits On EPA's SSM Policy, Gold King Spill

Jun 26, 2017 | Inside EPA

By Stuart Parker and David LaRoss

The Supreme Court has declined to hear an industry suit seeking to overturn an Obama administration policy that emissions limits apply even in cases of malfunctions as it applied to a boiler air toxics rule, leaving industry groups and the agency to now reconsider the broader issue of waivers for startup, shutdown and malfunctions (SSM) as they apply to state air quality plans.
In a June 26 order, the court by a 7-2 vote also rejected New Mexico's petition to file a bill of complaint against Colorado, which would have been the first step in a direct suit against the Centennial State for its contribution to the 2015 Gold King Mine wastewater spill.
The court's decisions not to hear the two cases means the high court has no new environmental cases on its docket for the 2017-18 term other than National Association of Manufacturers v. Department of Defense, the suit that will determine which court -- appellate or district -- has jurisdiction to hear challenges to the Obama administration's CWA jurisdiction rule, which will also affect the certain challenges to the Trump administration's forthcoming replacement.
In its order, the high court without comment denied the petition for certiorari filed by electric utility American Municipal Power (AMP) over EPA's air toxics rule setting maximum achievable control technology (MACT) for large “major source” industrial boilers.
AMP challenged the rule because it enshrines a malfunction policy, common to many EPA rules, that in effect renders compliance impossible, AMP and free-market groups argued in AMP, et al. v. EPA, et al.
Responding to rulings from the U.S. Court of Appeals for the District of Columbia Circuit, the Obama EPA abandoned a Bush-era policy allowing exemptions for emissions breaching regulatory limits during SSM periods.
The agency is presently employing case-by-case “enforcement discretion” in deciding whether and how to enforce against sources found polluting in excess of permitted limits.
In a brief to the court, the Trump EPA defended the Obama-era policy and urged the justices to reject the petition, though the agency is reviewing the SSM policy.
The D.C. Circuit first in its 2008 ruling in Sierra Club v. EPA blocked blanket exemptions, then later in the 2014 decision in Natural Resources Defense Council v. EPA also found unlawful narrower “affirmative defenses” that shield industry from civil liability for malfunctions deemed unavoidable by EPA.
The court and later the Obama EPA held that emissions limits must apply on a continuous basis, but AMP and many other industry groups argue the cases were wrongly decided.
The high court's decision now leaves another D.C. Circuit suit, Environmental Committee of the Florida Electric Power Coordinating Group, Inc., et al., v. EPA, et al., as the lead case in consolidated litigation testing EPA's SSM policy. The case, formerly known as Walter Coke, et al. v. EPA, et al., prior to the withdrawal of petitioner Walter Coke, pits a coalition of industry groups and states against the Obama EPA's SIP Call rule that required 36 states to remove from their state implementation plans (SIPs) SSM exemptions, including affirmative defenses, by Nov. 22, 2016.
EPA issued the SIP rule in response to the D.C. Circuit's rulings in NRDC and Sierra Club, arguing that it is necessary to comply with the court's view of SSM and to harmonize state plans with federal regulations as EPA had been stripping SSM exemptions from its own rules for some time.
But the agency's opponents say it has overreached by extending the D.C. Circuit's holdings to state plans. EPA Administrator Scott Pruitt is among those who attacked the agency over various rules for alleged overreach, and the Trump administration is now reviewing the SIP Call -- and therefore the underlying SSM policy -- while the SIP Call litigation is on hold at its request.
EPA could opt to reconsider the SSM policy itself, but Environmental Committee of the Florida Electric Power Coordinating Group also remains a possible vehicle for ultimate high court review.
Some industry sources have indicated this would be preferable to review of AMP anyway, as the company, in its argument, claimed that EPA wrongly overlooked Clean Air Act provisions on malfunctions not previously associated with SSM policy. This raised the possibility of unforeseen consequences that could further hamper states and industry, sources say, and many in industry would prefer a simple return to SSM exemptions as a legal option.
Gold King Spill
In the Gold King case, New Mexico had hoped to sue under the Resource Conservation & Recovery Act, Superfund law and common law, claiming Colorado played a direct role in allowing improper closure procedures at the former mine that allowed contaminated wastewater to build up there, until an EPA-led cleanup team caused a blowout that released 3 million gallons of waste.
Both Colorado and the Department of Justice under President Donald Trump urged the court to reject New Mexico's complaint, arguing that the waste laws do not allow state-to-state suits and that the Clean Water Act also preempts litigation over the spill.
Suits between states can only be filed in the Supreme Court, but if the justices decline the bill of complaint, as they have in the Gold King litigation, the case cannot go forward.
Thus, the court's June 26 order means New Mexico will not be able to sue its neighbor over the spill, or the broader issue of acid mine drainage from former Colorado mines into waters that flow downstream, which it also included in the filing. Instead, the state, together with the Navajo Nation, will be limited to continuing the pending district court suit against EPA and private defendants.
While the justices rejected the bill of complaint, Justices Samuel Alito and Clarence Thomas dissented from the denial, citing Thomas' 2016 dissent in Nebraska v. Colorado for their reasoning.
In that case, Thomas wrote that no law gives the Supreme Court discretion to reject a bill of complaint filed by one state against another -- instead, he argued in 2016, the justices must hear any such suit brought to them.
“If there is a controversy between two States, this Court -- and only this Court -- has jurisdiction over it. Nothing . . . suggests that the Court can opt to decline jurisdiction over such a controversy,” Thomas wrote.
https://insideepa.com/daily-news/high-court-declines-hear-suits-epas-ssm-policy-gold-king-spill

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Here's the Real Problem with Trying to Tax Our Way Out of the Climate Crisis

Jun 27, 2017 | CNBC

By Terry Tamminen

Fool's gold glitters as brightly as the real thing, but a lot of valuable time and money can be wasted figuring out the difference. The proposal to price carbon pollution in America put forward recently by noted conservatives and fossil fuel companies may be a fresh, constructive way to tackle climate change, but make no mistake — it is little more than a shiny object that could do more harm than good.
In a recent opinion piece in the Washington Post, George P. Shultz and Lawrence H. Summers offer a carbon pricing concept that they are promoting, with growing support from thoughtful leaders in government and business (led by Exxon Mobil and other large oil companies) under the banner Climate Leadership Council (CLC). Their plan would tax carbon emissions, but return the funds raised to every American in an annual "dividend." This "tax and dividend" plan would depend on Congress rolling back existing and future regulation of carbon pollution, meaning actual reduction of greenhouse gases would depend entirely on consumer behavior.
Let me preface my criticism of this proposal by saying how much I respect Mr. Shultz. I have worked with him on numerous sustainability issues when I served as California's EPA Secretary in the administration of Governor Arnold Schwarzenegger (I respect Mr. Summers as well, but do not know him personally). I agree with the members of the CLC that we desperately need a price on carbon to adequately address climate change and that some kind of market mechanism is an appropriate way for the polluter to compensate the rest of us (and the planet!) for their carbon footprints.
But this proposal falls short, and is potentially dangerous fool's gold if adopted, in several critical ways. First, we have run out of time for experiments. In the mid-2000s, California and other states sued the Bush administration to prove that greenhouse gases were pollutants as defined by the federal Clean Air Act. We prevailed in a Supreme Court decision in 2007, but the Bush EPA stalled on its statutory duties and simply ran out the clock until President Obama took office in 2009 and acted on that landmark legal decision.
Back then, scientists said we had 20 to 30 years to peak global carbon emissions and begin to lower them, if we hoped to avoid the worst consequences of climate change. Now, almost a decade later, the science suggests we have no more than 10 years to accomplish this monumental task. It's worth noting that the 2015 Paris climate agreement, if fully implemented, would only accomplish about half the task, so there is a lot of work to do in a very short time frame.
The CLC proposal offers no way to cap emissions or otherwise ensure the tax would reduce carbon pollution on a predictable timeline. By contrast, the vehicle tailpipe emissions limits, that California regulations require, provide certainty as cars get cleaner and more fuel-efficient, reducing asthma and other lung disease, while saving consumers money along the way, without a complicated adjustment of the tax code and rebate program to consumers (side note: conservatives always advocate for smaller government, so regulating cleaner, more efficient cars are a way to cut out the bureaucratic middle man that would be needed by the cap-dividend approach).
The second problem with the CLC approach is politics. Let's not fool ourselves that many politicians of both parties will oppose any new taxes, even if there's a rebate program attached. Conservatives want lower taxes of all kinds; liberals will criticize a regressive tax that hurts the poor while they wait for their rebate check once a year (and the basic unfairness of rebates going to the wealthy and poor alike).
But the real problem with trying to tax our way out of the climate crisis is that taxes can be eliminated with the stroke of a pen. Congresses and presidents are very good at changing single-issue taxes in annual budget legislation, whereas making or breaking regulations take time to draft and set goals, gather public comment, and implement across affected parties. If the CLC plan were to go ahead, the hard work of agencies, the public, and companies would be lost and very difficult to re-create, if Congress changes its mind in a year or two and scraps the program.
Because the Paris agreement doesn't do the whole job, I agree that to truly tame climate change before it's too late we need a price on carbon, but there are better ways to do it. Ten states in the U.S., along with Canadian provinces, states in China, and the whole European Union, have cap-and-trade systems that are already working. Yes, there have been growing pains, but the big difference between a tax and a carbon trading program is certainty. The "cap" in cap-and-trade is the crucial missing ingredient in the CLC proposal and, as noted, we don't have time to fiddle while the planet burns.
Mr. Shultz and Mr. Summers contend that a $40/ton carbon tax would "achieve substantially greater reduction in greenhouse-gas emissions than all of the regulation now on the table," but offer no evidence. Would $40/ton equate to $1/gallon tax on gasoline? If it did, would drivers use so much less that emissions would fall, or would they simply grumble about the price and cut back on other spending (as has happened in the past when gasoline prices rose and fell wildly). Would people use less electricity if they saw a few dollars a month added to their electric bills? And if they don't change these behaviors, would Congress be willing to double or triple the tax until emissions declined?
Sure, the CLC plan rebates the tax to people each year, but might that just encourage someone to buy an SUV instead of an electric car? The point is that we don't know and we don't have time — or the probable political backbone — to tinker with the tax code to find out.
The contention was also made that regulating carbon puts us at a disadvantage in global markets, but evidence suggests otherwise. It is clean, fuel-efficient cars from Asia and Europe that outsell gas-guzzling U.S. brands in overseas markets. Making our cars cleaner and more efficient will increase their competitiveness worldwide, not reduce it. And manufacturers that pay for electricity may have to increase the price of goods slightly, but 195 other nations that signed the Paris agreement (and have not withdrawn, as the U.S. has done) will be imposing the same limits on their energy systems.
When I was EPA Secretary, business leaders always asked me for one thing — certainty and time to prepare. Our regulations and the cap-and-trade system of pricing carbon pollution do both. The CLC plan does neither.
For those who disagree, suggesting politics are more predictable than painstakingly crafted regulation and competitive carbon markets, I point to the recent presidential election as Exhibit A that you are blinded by fool's gold.
In many ways, fossil fuels and carbon emissions are not the enemy — time is the reason we can't afford to fool around with glittery proposals over hard-won, proven solutions that are already beginning to work.
Terry Tamminen, Secretary of the California Environmental Protection Agency in the Schwarzenegger administration. He is president of Seventh Generation Advisors, an operating partner at Pegasus Capital Advisors and the CEO of the Leonardo DiCaprio Foundation. He is also the author of "Cracking the Carbon Code: The Key to Sustainable Profits in the New Economy."
http://www.cnbc.com/2017/06/26/heres-the-real-problem-with-trying-to-tax-our-way-out-of-the-climate-crisis-commentary.html

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